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Love v. Swarthout

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 7, 2009

AUBREY L. LOVE, PETITIONER,
v.
GARY SWARTHOUT, WARDEN (A), CALIFORNIA STATE PRISON, SOLANO, RESPONDENT.

The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

STAY ORDER

At Docket No. 17 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. 19. Petitioner Aubrey L. Love, a state prisoner appearing pro se, opposes staying this matter. Docket No. 20.

Love argues that this case differs from Hayward in that Love is alleging the violation of a plea agreement. Love entered a plea of guilty to second-degree murder and admitted to the use of a handgun. In accordance with that plea, Love was sentenced to an indeterminate term of 15 years to life on the murder charge, to be served consecutively to a determinate three-year term for the use of a handgun. Nothing in the record supports Love's alleged "understanding" that the plea agreement encompassed an implicit promise that he would be granted parole other than as provided by California law. Nor is there any authority for Love's argument that an indeterminate term of 15 years to life creates an ambiguity that is to be construed against the State or that the Board of Prison Terms must consider the fact that his sentence was the result of a plea bargain. This issue does not present a federal constitutional question cognizable by this Court in a federal habeas proceeding.

This Court is not unmindful that the decision of the California Supreme Court in In re Lawrence*fn1 strongly supports Love'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."*fn2 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."*fn3 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.'"*fn4

Whatever view the California Supreme Court may have construing federal law, no matter how persuasive, is irrelevant in a federal habeas proceeding.

The issue before this Court is whether the United States Supreme Court has held that reliance on the underlying commitment offense alone violates the Due Process Clause of the Fourteenth Amendment. Federal 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. There is no constitutional or inherent right of a convicted person to be conditionally released on parole before expiration of a sentence.*fn5 Due process is satisfied when the state provides for review of the inmate's file, a personal interview by the Board, and a statement of its reasons for denying parole,*fn6 and that decision is supported by some evidence in the record.*fn7 Squarely before the en banc panel in Hayward is whether the dicta in Biggs,*fn8 "[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,"*fn9 is, or should be, the federal law of the circuit. Whatever decision is reached in Hayward, this Court will be bound by that decision,*fn10 not 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 Love. 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 cases in abeyance pending the decision in Hayward.

IT IS THEREFORE 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.


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