The opinion of the court was delivered by: United States District Judge Honorable Larry Alan Burns
In his original habeas petition, Petitioner Jason W. Clark alleged that the California Board of Parole violated his due process rights by denying him parole. Clark maintained: (1) The Board considered certain factors that were outside of his plea agreement (e.g., his prior criminal history and the fact that he used a knife in his commitment offense); and (2) the Board lacked sufficient justification for its decision. The Court, following the R&R, denied Clark's petition on the merits, but in his objection to the R&R Clark sought leave to amend the petition to incorporate two new claims. The first is that he did not knowingly enter into his plea agreement, and the second is that his guilty plea was the result of ineffective assistance of counsel. When it denied his petition on the merits, the Court ordered Clark to show cause why leave to amend should be granted. He then filed a motion for stay and abeyance, seeking to exhaust his new claims in state court.
A stay and abeyance may be appropriate in limited circumstances for mixed petitions that contain both exhausted and unexhausted claims. Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines v. Weber, 544 U.S. 269, 273--75, 277--78 (2005)). This would allow a petitioner to "present his unexhausted claims to the state court without losing his right to federal habeas review due to the relevant one-year statute of limitations." Id. But Clark's habeas petition was not mixed. Rather, it advanced four claims, and the two claims he now wishes to add were advanced for the first time in his objection to the R&R. Clark's motion for stay and abeyance is not responsive, then, to the Court's order, when it adopted the R&R, to show cause why he should be granted leave to amend his petition. The new claims are also untimely, given the late stage that he raised them. Clark's parole hearing took place on September 5, 2007. Clark waited almost 5 months to file a state habeas petition, and when that was denied in November 2008 he waited another two months to file his federal petition. His objection to the R&R wasn't filed until July 2009, taking him well beyond the one year he's allowed to present habeas claims in federal court, even accounting for tolling while his state habeas petition was pending.*fn1 See King v. Ryan, 564 F.3d 1133, 1141 (9th Cir. 2009) (citing Duncan v. Walker, 533 U.S. 167 (2001)) (filing of a federal habeas petition doesn't toll the AEDPA statute of limitations). The Court specifically ordered Clark to show why his claims are not time-barred (Doc. No.26), and he has failed to do so.*fn2
His request for leave to amend his petition is therefore DENIED.
As to Clark's original four claims, the Court DENIES him a certificate of appealability. Those claims are not "debatable among jurists of reason" and do not "deserve encouragement to pursue further." Doe v. Woodford, 508 F.3d 563, 567 (9th Cir. 2007) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). As to Clark's first two claims alleging a breach of his plea agreement, Clark's subjective understanding of the plea agreement, or intent in entering into it, cannot override the words of the document. Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006) (citing principles of contract interpretation under California law). And, Clark concedes that "the plea did not specifically mention the parole board or limitations on said board," and "the District Attorney never mentioned the parole board in the pleading." (Traverse at 4--5.) See Thompson v. Watson, 2009 WL 800932 at *4 (E.D. Cal. 2009) (R&R finding that habeas petitioner "must demonstrate that the parole board's denial of parole violates an express promise made in connection with Petitioner's acceptance of the plea agreement"). As to Clark's second two claims challenging the parole board's decision on the merits, the Supreme Court has recently restricted the bases on which claims arising out of parole proceedings are cognizable on federal habeas review. See Swarthout v. Cooke, 562 U.S. ___ (2011). Swarthout held that the due process protections in the context of parole are "minimal"; they include an opportunity to be heard and a statement of reasons why parole is denied. Id. Clark received both of those.