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Green v. Small

March 11, 2010


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


On September 17, 2008, Petitioner Donald Green, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus. (Doc. No. 1.) On August 14, 2009, Magistrate Judge Barbara L. Major submitted a Report and Recommendation (R&R) to this Court, recommending that it deny Petitioner's petition for writ of habeas corpus. (Doc. No. 21.) After this Court granted an extension of time, Petitioner timely filed his objections. (Doc. No. 24.) Defendants did not file a reply. For the following reasons, this Court OVERRULES Petitioner's objections; ADOPTS Magistrate Judge Major's R&R; DENIES Petitioner's Petition for Writ of Habeas Corpus; and DENIES Petitioner's request for an evidentiary hearing.


Magistrate Judge Majors' R&R extensively lays out the procedural and factual background in this matter. Plaintiff makes no specific objection to these summaries. Thus, the Court adopts by reference Magistrate Judge Majors' recitation of the facts as set forth in her R&R.


Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of the district court in connection with a magistrate judge's report and recommendation. "The district court must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the finding or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).


Petitioner was convicted of second degree murder and the use of a firearm and was sentenced to a term of twenty years to life in prison with a minimum parole date of December 2, 2007. (Lodgment 2 at 1.) On March 14, 2007, the Board of Parole Hearings ("Board") held Petitioner's Initial Parole Consideration Hearing at Calipatria State Prison. (Id.) After the hearing, the Board determined that Petitioner was not suitable for parole, presenting six reasons:

(1) the offense was carried out in an especially callous and dispassionate manner, (2) the motive for the crime was inexplicable, (3) Petitioner had not accepted full responsibility for his actions, (4) Petitioner had an escalating record of violence, assaultive behavior and unstable social relationships, (5) Petitioner had not demonstrated evidence of participation in self-help programs or evidence of a positive change, and (6) Petitioner had not demonstrated adequate plans for life after prison. (R&R at 3; see also Lodgment 2 at 93-96.) Petitioner was denied parole for five years. (R&R at 3; Lodgment 2 at 102.)

Petitioner filed a petition of writ of habeas corpus in Los Angeles County Superior Court, which was denied by that Court as well as the California Court of Appeal and California Supreme Court. (See R&R at 4.) Thereafter, Petitioner filed the instant Petition for Writ of Habeas Corpus. (Doc. No. 1 ("Petition").) In his petition, Petitioner asserts three grounds for relief. First, Plaintiff argues that Defendants failed to comply with California Penal Code Section 3041(a), thus depriving him of his liberty interest in parole. (Petition*fn1 at 8-12.) Second, Petitioner claims that the Board violated his right to due process by failing to comply with California Code of Regulations, Title 15, Section 2403(a). (Petition at 12-15.) Third, Petitioner alleges that he was deprived of his Sixth Amendment right to effective assistance of counsel at his parole hearing. (Petition at 15-17.)

I. Due Process Violation - Deprivation of Liberty Interest in Parole

The Due Process Clause prohibits the government from depriving an inmate of a liberty interest without adequate procedural safeguards. Petitioner claims that he "was entitled to have an actual parole release date set at his 'Initial Parole Consideration Hearing'" after conducting a "proportionality analysis." (Petition at 10-11.) By the Board not doing so, Petitioner contends that it deprived him of his liberty interest in parole in violation of his due process rights.

Petitioner cites to California Penal Code Section 3041, which provides in pertinent part:

(b) The panel or the board . . . shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this ...

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