IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 10, 2009
EDMOND OSCAR WALKER, PETITIONER,
MICHAEL S. EVANS, WARDEN, CALIFORNIA STATE PRISON, FOLSOM, RESPONDENT.
The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion at Docket No. 48] and STAYING PROCEEDINGS
I. MOTION PRESENTED
At Docket No. 48 petitioner Edmond Oscar Walker, a state prisoner appearing through counsel, has moved for reconsideration of the order denying leave to file an amended petition entered at Docket No. 45.
Under the law of the case doctrine a court is generally precluded from reconsidering an issue that has already been decided by the same court or a higher court in the same case.*fn1 However, the law of the case doctrine is not a shackle without a key. If the court enters an interlocutory order without entering a final judgment, e.g., an order granting summary judgment but no final judgment, Federal Rule of Civil Procedure Rule 59 does not apply.*fn2 As long as a district court retains jurisdiction over a case, however, it has inherent power to reconsider and modify an interlocutory order for sufficient cause.*fn3
That inherent power is not unfettered: "the court may reconsider previously decided questions in cases in which there has been an intervening change of controlling authority, new evidence has surfaced, or the previous disposition was clearly erroneous and would work a manifest injustice."*fn4 In this case, there has been no intervening change in controlling authority, nor has any new evidence surfaced. The sole basis asserted is that the previous disposition was clearly erroneous and would work a manifest injustice.
Walker, appearing pro se, raised a single ground in his petition: the Governor's action in overturning the decision of the parole authority to grant him parole denied him due process in that it was based solely upon the nature of the underlying conviction. In his motion to amend the petition, Walker, represented by appointed counsel, sought to add as a ground that, since at the time he committed his offense, the Governor had no authority to reverse the decision of the parole board to grant him parole, the subsequent amendment to the California Constitution, California Constitution, Article 4, section 5(b), granting him this authority violated the United States Constitution prohibition on ex post facto laws.*fn5 The Court held that because the ex post facto argument was foreclosed by the decision of the Ninth Circuit in Johnson v. Gomez,*fn6 amendment would be futile and denied leave to amend.
In his motion for reconsideration, Walker argues that this Court should disregard Johnson. To support this argument, Walker quotes the Supreme Court in Garner v. Jones:*fn7
When the rule does not by its own terms show a significant risk, [the prisoner] must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.
Walker argues that when Johnson was decided, the Garner test was unavailable. Walker's premise is that he has alleged facts in his petition that, if proven, the practical implementation of the provision that allows the governor to reverse the grant of parole has resulted in longer periods of incarceration than under the prior law, which satisfies the Garner test.*fn8 As a consequence, he is entitled to relief. The Court disagrees.
This Court is bound by decisions of the Ninth Circuit.*fn9 This Court is, however, not bound to follow the decision of the Ninth Circuit if subsequent higher authority "so undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are irreconcilable."*fn10 If the later decision is not "clearly irreconcilable" with the earlier decision, the earlier decision remains the law of the circuit.*fn11 Thus, the issue is whether Johnson is irreconcilable with Garner. The Court is of the opinion that it is not.
Johnson relied in substantial part on the Supreme Court decision in California Department of Corrections v. Morales.*fn12 In Morales, in upholding the change in the law that increased the time between parole hearings, the Supreme Court held that "[t]he amendment had no effect on the standards for fixing a prisoner's initial date of 'eligibility' for parole , or for determining his "suitability" for parole and setting his release date. . . . . [it] simply 'alters the method to be followed' in fixing a parole release date under identical substantive standards."*fn13
Johnson, following Morales, held:*fn14
In this case, Johnson is similarly unable to demonstrate that an increase in his punishment actually occurred, because, like the petitioner in Morales, he had not been granted parole under the old law. Morales, 514 U.S. at ----, 115 S.Ct. at 1600. Under the old law, the BPT's decision would have been subjected to no review. Johnson's case is like Dobbert [v. Florida, 432 U.S. 282 (1977)] where the petitioner could only speculate whether the jury would have imposed a life sentence had it possessed the final power to decide. Dobbert, 432 U.S. at 294 & n. 7, 97 S.Ct. at 2299 & n. 7. Here, because the BPT's parole decision is not final until after the expiration of the thirty-day gubernatorial review period, it cannot be said with certainty that the BPT would have granted Johnson parole had it possessed the final review authority.
Johnson argues that, unlike the administrative convenience purpose of the law in Morales, the purpose and effect of the law here is to lengthen prison terms by making it more difficult for convicted murderers with indeterminate sentences to be released on parole. However, the law itself is neutral inasmuch as it gives the governor power to either affirm or reverse a BPT's granting or denial of parole. Moreover, the governor must use the same criteria as the BPT. The law, therefore, simply removes final parole decision making authority from the BPT and places it in the hands of the governor. We cannot materially distinguish this change in the law from that at issue in Mallett v. North Carolina, 181 U.S. at 590, 21 S.Ct. at 731. In Mallett, the Court found no ex post facto violation where the new law allowed for higher court review of intermediate court decisions, even though the petitioner would have been entitled to a final intermediate court decision at the time of his crime. Id. at 597, 21 S.Ct. at 733.
In Garner the Georgia Parole Board amended its rule changing the frequency of required reconsideration for prisoners serving life sentences from every three years to every eight years. The Eleventh Circuit held that that provision violated the ex post facto clause if applied retroactively. The Supreme Court reversed and remanded for further consideration. The Supreme Court not only did not overrule Morales in Garner, it applied Morales.*fn15 As stated in Garner, under Morales "[t]he question is whether the amended [California] Rule creates a significant risk of prolonging [Walker's] incarceration."*fn16 As noted in Garner, the amended California law upheld in Morales did not modify the statutory punishment imposed for any particular offense or alter the standards for determining an inmate's suitability for parole, nor did it change the basic structure of California parole law.*fn17 Walker's argument that the evidence will establish that adding the gubernatorial review tier created a substantial risk that his period of incarceration would be increased says too much. The very fact that the Governor reversed the grant of parole effectively increased his term of incarceration. While facially it may appear that the quoted statement from Garner compels this Court to disregard Johnson and grant relief, taken in the context of the entire decision and the result, Garner does not compel that result. In remanding, the Supreme Court was concerned with whether the evidence would show that the Georgia parole board followed its rules and exercised its discretion; whether or not it abused its discretion was a separate issue. Only if it were not following its rules and exercising its discretion would the rule change constitute a violation of the ex post facto clause.*fn18 Implicit in Garner was that if the rule and policy established by the Georgia parole board were followed the change in policy would not violate the ex post facto clause.
Given the Ninth Circuit's holding in Johnson that "it cannot be said with certainty that the BPT would have granted Johnson parole had it possessed the final review authority,"*fn19 coupled with its reliance on the factors identified in Morales, undisturbed by Garner, and application of Mallett, as well as the tenor of the opinion in Garner, this Court cannot say that Garner "so undercut[s] the theory or reasoning underlying [Johnson] in such a way that the cases are irreconcilable."*fn20 Consequently, this Court lacks authority to disregard Johnson. If Johnson is to be overruled, it is up to the Ninth Circuit itself or the Supreme Court to do so, not a district court. This Court, being bound by Johnson, has no basis upon which it may reconsider and reverse its prior decision to deny leave to amend.
V. HAYWARD STAY
At Docket No. 46 this Court issued its Order to Show Cause why this matter should not be stayed pending the issuance of the mandate by the United States Court of Appeals for the Ninth Circuit in Hayward v. Marshall, 512 F.3d 536, reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008), Case No. 06-55392. Respondent concurs that this matter should be stayed. Docket No. 47. Walker opposes the stay. Docket No. 49.
This Court is not unmindful of the decision of the California Supreme Court in In re Lawrence,*fn21 which strongly supports Walker's position. This Court cannot, however, grant relief unless the decision of the state court being reviewed in this case was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn22 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn23 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn24
Whatever view the California Supreme Court may have construing Federal law, no matter how persuasive, is irrelevant in a federal habeas proceeding.*fn25
The law concerning the extent of the reliance by the parole board on the facts of the underlying conviction constitutes a denial of due process is far from "well settled." Squarely before the en banc panel in Hayward is whether the dicta in Biggs v. Terhune,*fn26 "[a] continued reliance in the future on an unchanging factor, the circumstances of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the system and could result in a due process violation," is, or should be, the federal law of the circuit. Whatever the decision reached in Hayward may be, by which, as noted above, this Court will be bound; it is not bound by the decision of the California Supreme Court in Lawrence.
The Court is also not unmindful of the potential adverse impact that staying this action may have on Walker. On the other hand, any ruling in his favor by this Court more likely than not would be appealed to the Ninth Circuit, which is itself holding similar cases in abeyance pending the decision in Hayward.
VI. CONCLUSION AND ORDER
Petitioner's motion for reconsideration does not set forth any grounds upon which this Court could grant relief. Accordingly,
IT IS ORDERED THAT Petitioner's Motion for Reconsideration at Docket No. 48 is DENIED.
IT IS FURTHER ORDERED THAT this matter is stayed pending the issuance of the mandate by the United States Court of Appeals for the Ninth Circuit in Hayward v. Marshall, 512 F.3d 536, reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008), Case No. 06-55392.
IT IS FURTHER ORDERED THAT, should the Petitioner be granted parole, not later than 30 days after the decision of the Board of Parole Hearings becomes effective, Respondent is directed to inform the Court of the action of the Board and the date Petitioner is scheduled to be released on parole.