IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 11, 2011
JEFFREY PRICE, PETITIONER,
MATTHEW CATE,*FN1 SECRETARY, CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.
The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion at Docket No. 70]
ORDER and MEMORANDUM
Jeffrey Price, a state parolee initially appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Price is currently in the custody of the California Department of Corrections and Rehabilitation, in parole status.*fn2 Respondent has answered, and Price has replied.
At Docket No. 68 this Court entered an Order holding this matter in abeyance pending the exhaustion of Price's state court remedies in connection with the reversal by the Governor of the Board of Parole Hearings' grant of parole in June 2009. At Docket No. 70, Price seeks reconsideration of that Order. Respondent opposes the Motion for Reconsideration, and Price has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following the entry of a guilty plea in July 1986, Price was convicted in the Los Angeles Superior Court of Murder in the Second Degree (Cal. Penal Code, §§ 187, 190), with a use of a firearm enhancement (Cal. Penal Code, § 12022.5). The trial court sentenced Price to an indeterminate term of 15 years to life, to be served consecutive to a determinate two-year term for the firearm enhancement. Price does not challenge his conviction or sentence in this proceeding.
In December 1999 the Board of Prison Terms ("Board") declined to find Price suitable for parole. Price, appearing pro se, timely filed a petition for habeas corpus relief in the Los Angeles County Superior Court, which was summarily denied.*fn3 Price, proceeding pro se, then filed a petition for habeas corpus relief in the California Court of Appeal, Second Appellate District, which was denied for failure to establish a prima facie case, citing Terhune v. Superior Court (2000) 80 Cal. App. 4th 409, 423;*fn4 In re Stanworth (1982) 33 Cal. 3d 176, 183-185 [654 P.2d 1311, 1315-17]; In re Powell (1988) 45 Cal. 3d 894, 902-906 [755 P.3d 881, 885-88].*fn5
Price then filed a pro se petition for habeas relief in the California Supreme Court, which was summarily denied without opinion or citation to authority on September 26, 2001.*fn6 Price, appearing pro se, timely filed his petition for relief in this Court on January 11, 2002.
On September 20, 2005, Price's Petition was dismissed without prejudice as moot. On appeal, the Court of Appeals, Ninth Circuit, reversed and remanded. Price, appearing through appointed counsel and with leave of court, filed an amended petition. In his amended petition, in addition to the 1999 Board denial, Price challenges the reversal by the Governor in 2004 of the Board's finding of suitability for parole, and the subsequent 2005 denial by the Board to find him suitable for parole. The later proceedings are summarized below. This Court then stayed further proceedings in this action pending decision by the en banc panel of the United States Court of Appeals for the Ninth Circuit in Hayward.*fn7 The Ninth Circuit has issued its en banc opinion in Hayward.*fn8 2003 Parole Proceedings: In September 2003 the Board found Price suitable for parole, but did not set a parole date. The Governor reversed the Board's suitability finding in February 2004. Price, proceeding pro se, timely filed a petition for habeas corpus relief in the Los Angeles County Superior Court, which denied his petition in an unpublished reasoned decision.*fn9 The California Court of Appeal, Second Appellate District, denied habeas relief stating: "The record contains sufficient evidence to support the Governor's decision. (In re Rosenkrantz (2002) 29 Cal. 4th 616, 659-682)."*fn10 On January 24, 2007, the California Supreme Court summarily denied Price's petition for habeas relief citing People v. Duvall (1995) 9 Cal.4th 464');">9 Cal. 4th 464, 474 [886 P.2d 1252, 1258].*fn11 2005 Parole Proceedings: In June 2005 the Board, sitting en banc, declined to find Price suitable for parole.*fn12 On January 24, 2007, the California Supreme Court summarily denied Price's petition for habeas relief citing People v. Duvall (1995) 9 Cal.4th 464');">9 Cal. 4th 464, 474 [886 P.2d 1252, 1258].*fn13
In August 2007 the Board again declined to find Price suitable for parole. In January 2009 the Board found Price suitable for parole, but the Governor again reversed.*fn14 In March 2010 Price again appeared before the Board for a parole-suitability hearing, and was once again denied parole.*fn15 The 2007, 2009, and 2010 proceedings are not presently before this Court.
II. GROUNDS RAISED/DEFENSES.
In his amended petition Price raises three grounds, with the first ground having four subgrounds: (1) a violation of due process in that (A) the Board is biased against granting parole to prisoners serving life terms, (B) the evidence does not support the Board's finding of unsuitability for parole, (C) the repeated refusals to find him suitable for parole based upon the unchanging circumstances of the commitment offense, and (D) the Governor's 2004 reversal of the Board's suitability finding breached his plea agreement; (2) denial of parole constitutes cruel and unusual punishment; and (3) the Governor's reversal violated the Ex Post Facto Clause. Respondent asserts no affirmative defenses.*fn16
III. PENDING MOTION
In his motion to reconsider the Order holding this matter in abeyance, Price contends that the Ninth Circuit's decision holding that the subsequent actions by the Board and the Governor did not moot the case is the law of the case. This Court should, therefore, decide the three actions properly before it, the denials by the Board in1999 and 2005 and the 2004 reversal by the Governor, on the merits.
Given the recent decision by the United States Supreme Court in Cooke, discussed further below, there does not appear to be any reason to defer ruling on Price's Petition. Therefore, this Court will vacate the Order entered at Docket No. 68 and address the Petition on the merits.
Generally, when a higher court issues new controlling authority after briefing is complete, this Court requests further briefing from the parties addressing the new authority. The Supreme Court decision in this case is so clear that further briefing would appear to unduly prolong this old case without any possibility of changing the result. The Supreme Court has limited federal habeas review to the procedures followed by the Board and the governor and defined with care what it meant by the applicable procedures. No longer may this Court consider how the California courts applied California law. Under these circumstances, further briefing would not aid the Court in reaching a decision.
IV. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn17 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."*fn18 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn19 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.'"*fn20 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn21 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn22 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal proceeding is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn23 Price has the burden of showing by a preponderance of the evidence that he merits habeas relief.*fn24
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn25 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn26
Ground 1(A): Board Bias Price contends that the Board is biased against granting parole to "lifers." It does not appear that Price raised this issue in the state courts until he filed his petition for habeas relief in the California Supreme Court in 2006, which petition was summarily denied without a reasoned opinion. When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must assume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn27 The scope of this review is for clear error of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams . . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn28
"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn29
Price argued before the California Supreme Court that the action by the Board and the lower state courts was contrary to the intent of Cal. Penal Code, § 3041, and that those decisions, in some unidentified way, violated due process under the Federal constitution. Price makes essentially the same argument before this Court, arguing that the California parole system, administered in a manner that violates § 3041, arbitrarily establishes a "no parole" policy in violation of the federal constitution. Price cites Hicks v. Oklahoma*fn30 for the proposition that arbitrary deprivation of a state statute affecting life or liberty constitutes a violation of federal due process.
First, Price's argument that the Board and lower state courts misapplied Cal. Penal Code § 3041 is a question of state law that, although properly brought before the California Supreme Court, is beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn31 A petitioner may not transform a state-law issue into a federal issue by simply asserting a violation of due process.*fn32 "[A]bsent a specific constitutional violation, federal habeas corpus review of [state court proceedings] is limited to whether the error 'so infected the [state proceedings] with unfairness as to make the result . . . a denial of due process.'"*fn33
"'Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.'"*fn34
It is well-established by Supreme Court precedent that there is no
constitutional or inherent right of a convicted person to be
conditionally released on parole before expiration of a
sentence.*fn35 In the parole setting, due process
requires that the Board review the inmate's record, accord the inmate
a personal interview before the Board, and provide a statement of the
reasons for denial.*fn36 It is axiomatic that a "fair
trial in a fair tribunal is a basic requirement of due process," i.e.,
an absence of actual bias.*fn37 This principle applies
equally to adjudicative administrative agencies as well.*fn38
Price does not allege that the Board is biased or prejudiced
against him personally, but as a member of an identifiable class,
i.e., those serving life terms. This is more of an equal protection
than a due process argument. Treated as such, Price's argument fails.
Price has not cited any case, and independent research by this Court
has not found any such case, holding that "lifers" are a class
protected by the Equal Protection Clause of the Fourteenth Amendment.
Hicks, cited by Price, cannot be read as broadly as Price contends. Hicks was sentenced by a jury to 40 years based upon a mandatory statutory provision found to be unconstitutional in another case while Hicks's appeal was pending. If properly instructed, the jury, in its discretion, could have imposed a sentence of not less than 10 years, instead of the mandatory 40 years. As instructed, the jury was precluded from exercising that discretion. On appeal, the state court declined to reverse based upon the argument that because the 40 years was within the statutory range, even if the jury had been properly instructed, the jury might have sentenced Hicks to the 40 years, thereby rendering the error non-prejudicial. The Supreme Court first held that the right to the benefit of the jury's discretion in fixing a sentence was a right protected by the Due Process Clause. The Supreme Court then held that the possibility that the jury might still have sentenced Hicks to 40 years was insufficient to validate an instruction that negated that discretion. In this case, the Board was, in fact, exercising its statutory discretion.
To make out a claim of unconstitutional bias, Price must "overcome a presumption of honesty and integrity" on the part of the decision-maker.*fn39 In support of his claim, Price cites statistical studies showing that the number of paroles granted "lifers" is very low and cites a number of cases in which a California or federal court has found that the finding of the board denying parole was arbitrary or unsupported by the evidence. In essence, Price is making a claim of "institutional bias." What Price's evidence does not establish is the existence of bias on the part of the members of either of the two Board panels that denied him parole.
The Supreme Court has never held that the mere fact that, in the exercise of its discretion, a parole board denies parole in the vast majority of cases involving lifers necessarily establishes an unconstitutional bias or prejudice on the part of the Board. Indeed, the Ninth Circuit has held that repeated unfavorable rulings, standing alone, are insufficient to support a claim that a decision-maker was biased.*fn40 Were this Court to accept Price's position in this case, it would in effect break new ground or impose a new obligation on the States, which this Court may not do.*fn41 Price, having failed to present an issue of constitutional dimension, is not entitled to relief under Ground 1(A).
Ground 1(B): Insufficient Evidence to Support an Unsuitable Finding; Ground 1(C): Reliance on Unchanging Circumstances Because these two issues are inextricably intertwined, i.e., reliance on unchanging circumstances being part of sufficiency of the evidence, they are discussed together. Price argues that the evidence is insufficient to support either the Board's or the Governor's findings that he posed an unreasonable risk of danger to society if released on parole.
After briefing in this case was completed, the United States Supreme Court decided Cooke. This Court must decide the case on the law as it exists at the time this Court renders its decision and, if controlling law changes while the case is pending, this Court applies the law as changed.*fn42 Thus, Cooke dictates the outcome in this case.
Generally, when a higher court issues new controlling authority after briefing is complete, this Court requests further briefing from the parties addressing the new authority. The Supreme Court decision in this case is so clear, that further briefing would unduly prolong this old case without any possibility of changing the result. The Supreme Court has limited federal habeas review to the procedures followed by the Board and the governor and defined with care what it meant by the applicable procedures. No longer may this Court consider how the California courts applied California law. Under these circumstances, further briefing would not aid the Court in reaching a decision.
It is well-established by Supreme Court precedent that there is no constitutional or inherent right of a convicted person to be conditionally released on parole before expiration of a sentence.*fn43 That a California prisoner has a liberty interest in parole protected by the procedural safeguards of the Due Process Clause of the Fourteenth Amendment is settled.*fn44 Because the only federal right at issue in parole cases is procedural, the relevant inquiry is whether Price received due process.*fn45 The Constitution only requires that a prisoner be allowed an opportunity to be heard and be provided with a statement of the reasons why a parole is denied, nothing more.*fn46 Price contends that the decisions of the Board and Governor were unsupported by some evidence as required by California law.*fn47 "[I]t is of no federal concern . . . whether California's 'some evidence' rule of judicial review (a procedure beyond what the Constitution demands) was correctly applied."*fn48 California prisoners are allowed to speak at their parole hearings and to contest the evidence against them, are afforded access to their records in advance, and are notified of the reasons why parole is denied. That is all that due process requires.*fn49 "'Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.'"*fn50
Cooke forecloses Price's arguments vis-a-vis California's "some evidence" rule. Price has failed to present an issue of constitutional dimension. Price is not entitled to relief under grounds 1(B) and (C).
Ground 1(D): Violation of Plea Agreement.
Price argues that at the time he entered his guilty plea, he had a
settled expectation that he would be granted parole pursuant to the
terms that the Board set. Price contends that the provision providing
for gubernatorial review and reversal of Board findings of suitability
for parole, which did not exist at the time Price entered his guilty
plea, denied Price this settled expectation. Although Price did not
raise this issue in his petition for habeas relief in the Los Angeles
Superior Court, Price did raise this issue before the California Court
of Appeal.*fn51 Price also raised this issue in a
perfunctory manner before the California Supreme Court.*fn52
Neither state court addressed the issue in a reasoned
decision. Thus, this Court must assume that the state courts decided
the issue presented to them and perform an independent review of the
to ascertain whether the state court decision was objectively
unreasonable,*fn53 The scope of this review is for
clear error,*fn54 giving due deference to the state
court's ultimate decision.*fn55
Price reads his "settled expectation" too broadly. What the State
promised Price in exchange for his guilty plea was a sentence of 15
years to life, with a possibility of parole at some point after he had
served his minimum term. There was no promise, actual or implied, of
when or under what terms or conditions he might be given parole, or,
for that matter, that he would be granted parole at all at any time.
The situation in this case is unlike that in St. Cyr,*fn56
relied on by Price in his petition to the California Court of
Appeal. In St. Cyr, the legislation in question abolished the right of
discretionary relief entirely, not merely the manner in which it was
exercised. Indeed, the Court in St. Cyr recognized that a mere change
in the manner in which the discretion was exercised would not raise a
constitutional question.*fn57 Moreover, the change in
California law was nothing more than an alteration of the method of
granting parole under identical substantive standards.*fn58
On the record before it, this Court cannot say that the assumed decision of the California Supreme Court upholding the Governor's reversal of Price's parole in the face of a challenge that it violated his plea agreement was "contrary to, or involved an unreasonable application of, . . . [St. Cyr]" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn59 Price is not entitled to relief under Ground 1(D).
Ground 2: Cruel and Unusual Punishment.
Price simply states: "The board in denying parole to Price has
violated his right to be free of cruel and unusual punishment." As for
his factual basis, Price simply states: "Same facts as set forth
above." This issue was neither presented to nor addressed by the Los
Angeles County Superior Court. The issue was, however, at least in
passing, presented to the California Supreme Court.*fn60
Price's position is terse and undeveloped. This Court is
neither required, nor inclined, to guess at which facts asserted by a
petitioner may support a particular ground. As the Supreme Court has
Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important . . . ."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." (internal quotation marks omitted)). Accordingly, the model form available to aid prisoners in filing their habeas petitions instructs in boldface:
"CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date." Petition for Relief From a Conviction or Sentence By a Person in State Custody, Habeas Corpus Rules, Forms App., 28 U.S.C., P. 685 (2000 ed., Supp. V) (emphasis in original).
A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to "show cause why the writ should not be granted." § 2243. Under Habeas Corpus Rule 4, if "it plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court," the court must summarily dismiss the petition without ordering a responsive pleading. If the court orders the State to file an answer, that pleading must "address the allegations in the petition." Rule 5(b).*fn61
The Eighth Amendment prohibits sentences that are grossly disproportionate to the crime, "outside the context of capital punishment, successful challenges to the proportionality of particular sentences will be exceedingly rare."*fn62 Balanced against the proportionality principle is the corollary principle that the determination of prison sentences is a legislative prerogative not within the province of the courts.*fn63 The Ninth Circuit has held that "'only extreme sentences that are grossly disproportionate to the crime' violate the Eighth Amendment."*fn64 Here, Price has not identified those facts, other than the fact he remains imprisoned after serving his minimum statutory term of an indeterminate life term, to support his position. Price received an indeterminate sentence of 15 years to life. Price does not show how the denial of parole to a person convicted of murder, which would be, in effect, a reduction of his maximum sentence of life, constitutes cruel and unusual punishment. Price bears the burden of establishing that he is entitled to relief. Price has simply failed to make even a minimal effort to shoulder that burden. Price is not entitled to relief on his second ground.
Ground 3: Ex Post Facto Clause.
Price contends that retroactive application of the provision providing
veto power by the Governor over parole decisions made by the Board,
which was enacted in 1988, two years after Price's conviction,
constitutes a violation of the Ex Post Facto Clause. This issue was
neither presented to nor addressed by the Los Angeles County Superior
Court or the California Court of Appeal. The issue was, however,
presented to the California Supreme Court, albeit in a very
perfunctory manner.*fn65 Garner made clear that
retroactive changes to a state's parole laws may, in some instances,
be violative of the Ex Post Facto Clause.*fn66 In
order to establish an ex post facto violation based on a state's
retroactive application of a parole statute, a prisoner must
demonstrate that the new statute "creates a significant risk of
prolonging [the prisoner's] incarceration."*fn67 Ex
post facto analysis of a facially neutral parole law requires a
case-specific, fact-intensive analysis regarding the risk posed by the
law to the particular prisoner challenging its
application.*fn68 The Supreme Court has also noted
that the possibility of immediate release is largely "theoretical" in
that in many cases a prisoner's release date comes at least several
years after a finding of suitability.*fn69 Thus, the
question before this Court is whether the decision of the
California Supreme Court upholding the denial of parole by the
Governor in the face of an ex post facto challenge was contrary to, or
involved an unreasonable application of Garner and Morales, or
constituted an unreasonable determination of the facts in light of the
evidence presented to it. Although Respondent has not raised as a
defense the failure to exhaust state court remedies,*fn70
neither has it been waived,*fn71 and in
appropriate circumstances this Court may raise the issue sua
sponte.*fn72 This case presents a situation where it
is appropriate to raise the failure to exhaust available state court
remedies sua sponte.
As the Supreme Court made crystal clear in Garner, application of the Ex Post Facto Clause to parole is a fact-driven analysis. Where, as here, the state court is not presented with any factual basis to support the issue, it makes it extremely difficult, if not impossible, for a federal court to determine that the holding of the state court was contrary to or an unreasonable application of controlling Supreme Court precedent.*fn73 It certainly makes it impossible for a federal court to find that the state court unreasonably determined the facts in light of the evidence before the state court when there is no evidence before the state court. In denying Price's petition, the California Supreme Court cited People v. Duvall (1995) 9 Cal.4th 464, 474 [886 P.2d 1252, 1258]. Duvall summarizes the requirements of habeas practice in California, which includes a recitation of the factual basis for the claim, and if the factual basis does not establish a prima facie case, the petition is denied.
Finally, the Ninth Circuit has held in a decision binding on this Court, "that the application of Proposition 89 to authorize the Governor's review of [Price's] grant of parole did not violate the Ex Post Facto Clause."*fn74 Based upon the record before it, this Court cannot say that the decision of the California Supreme Court upholding the Governor's reversal of the Board's finding of suitability for parole in the face of an ex post facto challenge was "contrary to, or involved an unreasonable application of, . . . [Garner and Morales]" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn75 Price is not entitled to relief on his third ground.
V. CONCLUSION AND ORDER
Price is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Motion for Reconsideration at Docket No. 70 is GRANTED.
IT IS FURTHER ORDERED THAT the Order at Docket No. 68 is VACATED.
IT IS FURTHER ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT this Court declines to issue a Certificate of Appealability.*fn76 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn77
The Clerk of the Court is to enter judgment accordingly.