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Javier Pastrana v. Kathleen Allison

March 3, 2011

JAVIER PASTRANA,
PETITIONER,
v.
KATHLEEN ALLISON, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DIRECTING THE CLERK TO SUBSTITUTE KATHLEEN ALLISON AS RESPONDENT FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S FIRST, SECOND, AND FIFTH CLAIMS FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT LEAVE TO AMEND PETITIONER'S THIRD AND FOURTH

CLAIMS FINDINGS AND RECOMMENDATIONS TO DIRECT THE ENTRY OF JUDGMENT AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on November 17, 2008. Respondent filed an answer on April 3, 2009, and Petitioner filed a timely traverse and supporting memorandum on April 5, 2010.

I. Jurisdiction

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Petitioner, an inmate of the California Substance Abuse Treatment Facility and State Prison at Corcoran, California (CSATF), claims that he suffered violations of his constitutional rights when he was found unsuitable for parole by the California Board of Parole Hearings (BPH) after a hearing held on January 31, 2007, at the CSATF. (Pet., doc. 1-1, 67, 1.) Thus, violations of the Constitution are alleged.

Further, the decision challenged was made at Corcoran, California, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).

Respondent Ken Clark answered the petition on behalf of Warden Clark. (Doc. 10, 1:21-22.) Petitioner thus named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Accordingly, the Court concludes that it has jurisdiction over the proceeding and over the Respondent.

II. Substitution of Respondent

Fed. R. Civ. P. 25(d) provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office.

Although Ken Clark was the warden at CSATF when the petition and answer were filed, reference to the official web site of the California Department of Corrections and Rehabilitation reflects that the current acting warden is Kathleen Allison. *fn1

The Court concludes that Kathleen Allison is an appropriate respondent in this action.

The Clerk is therefore DIRECTED to substitute Kathleen Allison, Acting Warden, as Respondent, in place of Ken Clerk.

III. Background

Petitioner raises the following claims: 1) Petitioner's agreement to plead guilty to second degree murder and to be sentenced to fifteen years to life with the possibility of parole was subjected to an "ex post facto violation of his reasonable understanding of his plea agreement" when he was not released on parole; 2) Petitioner's guilty plea was invalid as involuntary and unintelligent, and/or the result of ineffective assistance of counsel, because he was not released on parole after fifteen years; 3) the BPH violated state statutes, BPH rules, and Petitioner's Fourteenth Amendment right to due process of law when it determined that Petitioner was not suitable for parole;

4) the BPH was enforcing a "no-parole" policy; and 5) when the BPH considered facts concerning his crime and/or dismissed counts that were not found by a jury or admitted by Petitioner, it violated Petitioner's Sixth and Fourteenth Amendment rights to due process of law and protection against ex post facto laws. (Pet. 8-18.)

On December 9, 1983, Petitioner pled guilty to second degree murder. (Doc. 10-1, 36-37.) *fn2 Review of the transcript shows that the parties had jointly recommended a referral to the California Youth Authority (CYA) to determine if Petitioner could be housed there, and the court agreed to sentence him to CYA if the authority recommended retaining him there. (Id. at 37:6-15.) Petitioner was informed that he could face state prison if CYA did not accept him or desire to retain him. (Id. at 38:8-13.) The court expressly informed Petitioner that if he did not stay at CYA, he "would be facing a 15-to-life sentence," and when queried, Petitioner stated that he understood that. (Id. at 38:14-22.) Petitioner was also told that if he were sentenced to prison, he would be subject to a five-year parole term after release from prison. (Id. at 38:24-28.) When asked if there had been any other promises to induce his plea other than a second degree murder rather than first degree, Petitioner answered, "No." (Id. at 39:7-11.) Petitioner informed the court after waiver of his rights that he had no questions. (Id. at 41:13-20.)

On April 5, 1984, Petitioner was sentenced. (Doc. 10-2, 41-42.) The Superior court recited the terms of the plea at the sentencing hearing:

Pursuant to the case settlement arrived at by the parties, the defendant entered his plea of guilty to murder in the second degree with the indication by the court at the request of the People and Defense that the matter would be referred to California Youth Authority by way of 707.2, Welfare and Institutions Code commitment, in view of the defendant's age, namely, 17 years of age, and that the term prescribed by law, namely, 15 to life, would be served in CYA, California Youth Authority, if the defendant were accepted there and in state prison if he were rejected. (Id. at 42:1-11.) Petitioner was rejected by CYA, and the court sentenced him to state prison for the "term prescribed by law," which the sentencing court recited was "15 years to life." (Id. at 44:2-5.) The Court stated the following concerning parole at the time sentence was imposed:

You will be placed on a period of parole for, I believe, up to five years after you are released from prison.

And if you violate parole, of course you can be returned to state prison for an additional five years.

Do you understand? (Id. at 44:11-15.) Petitioner responded affirmatively. (Id. at 44:16.) Credit for 414 days actual time and good time/work time was given. (Id. at 45.)

In a declaration submitted with the petition, Petitioner declared that his trial counsel assured him that he would "only serve a minimum term of 10-15 years, and then be released from custody if I successfully programmed while in State Prison." (Pet. 6:5-9.) He further declared:

When I was not released at the end of 10 years, I thought perhaps that I would be released at the next Board of Parole Hearings. When I was again found "unsuitable" and a "danger to the public safety" by the following Board Commissioners, I then began to suspect the rumors of a "NO-PAROLE POLICY" which specifically targeted murderers might be true. (Pet., decl. of Javier Pastrana, 6:17-21.) Petitioner now believes that his only hope for freedom is to be re-sentenced to time served and to be released on parole, or to be discharged completely because of a gross miscarriage of justice resulting from his being punished in effect for first degree murder, a sentence he had intended to avoid by his agreement to plead guilty to ...


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