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Allen K. Ware v. Gary Swarthout


March 23, 2011



Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at a parole consideration hearing held on October 16, 2008. He claims that the Board's 2008 decision finding him unsuitable for parole violates his federal right to due process and the Ex Post Facto Clause.

As discussed below, the United States Supreme Court has held that the only inquiry on federal habeas review of a denial of parole is whether the petitioner has received "fair procedures" for vindication of the liberty interest in parole given by the state. Swarthout v. Cooke, 562 U.S. ___, No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). In the context of a California parole suitability hearing, a petitioner receives adequate process when he/she is allowed an opportunity to be heard and a statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners were "allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied"); see also Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 16 (1979). For the reasons that follow, applying this standard here requires that the petition for writ of habeas corpus be denied on petitioner's due process claim.

I. Procedural Background

Petitioner is confined pursuant to a 1976 judgment of conviction entered against him in the Los Angeles County Superior Court following his conviction on charges of first degree murder, burglary, and possession of marijuana for sale. Pet. at 19.*fn1 Pursuant to that conviction, petitioner was sentenced to seven years to life in state prison. Id. at 1.

Petitioner was found suitable for parole in 1984, but his parole was later rescinded. Pet., Ex. F. The facts surrounding these matters were set forth in a previous habeas corpus action filed by petitioner in this court, as follows:

Petitioner is currently serving a sentence of life with the possibility of parole for first degree murder and first degree burglary. He began his term of incarceration on December 28, 1976. At that time, petitioner's minimum eligible parole date (MEPD) was calculated to be June 27, 1983. In 1982, an initial parole hearing was held. Petitioner was placed on the calendar for a parole suitability hearing. In June 1983, the state held the scheduled hearing. Petitioner was denied parole. On May 10, 1984, petitioner received another parole hearing. After that hearing, the BPT granted petitioner parole and set his term of incarceration at 174 months. This date was later advanced to October 23, 1987. On October 30, 1986, petitioner was issued a rules violation report for possession of seven hundred dollars. He was subsequently found guilty of a "serious" rules violation based on his admission of guilt. Petitioner admitted that he had the money and stated that he planned to give it to his wife.

On April 21, 1987, the state held a hearing to determine whether petitioner's disciplinary violation was sufficient cause for rescission of petitioner's parole date. Petitioner appeared voluntarily without the presence of retained counsel. Petitioner admitted that he possessed the money, but stated that his mother had sent it to him through the mail and that he intended to give it to his wife. The hearing panel determined that petitioner's testimony did not appear credible, that petitioner had a history of "drug sales," and that, although the acquisition of the currency was "still somewhat of a mystery," rescission of petitioner's parole date was "more than warranted on the facts of this case."

Case No. CIV S-98-0752 GEB JFM P, Dckt. No. 11, at 2.*fn2 Petitioner has apparently not been found suitable for parole since 1987.

The parole consideration hearing that is placed at issue by the instant petition was held on October 16, 2008. Pet. at 59. Petitioner appeared at and participated in the hearing. Id. at 61-142. Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for two years and the reasons for that decision. Id. at 143-52.

Petitioner challenged the Board's 2008 decision in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court. Answer, Ex. 1. The Superior Court denied that petition in a decision on the merits of petitioner's due process claim. Id., Ex. 2. The Superior Court did not address petitioner's ex post facto claim. Id. Petitioner subsequently challenged the Board's 2008 decision in petitions for writ of habeas corpus filed in the California Court of Appeal and California Supreme Court. Id., Exs. 3, 5. The California Court of Appeal denied petitioner's due process claim with citations to In re Lawrence, 44 Cal.4th 1181, 1212 (2008) and In re Shaputis 44 Cal.4th 1241, 1254-161 (2008), and denied his ex post facto claim with citations to Cal. Penal Code § 3041, In re Duarte, 143 Cal.App.3d 943, 946 (1983), and In re Seabock, 140 Cal.App.3d 29, 41 (1983). Id., Ex. 4. The California Supreme Court summarily denied all of petitioner's claims. Id., Ex. 6.

II. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citations omitted) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

III. Petitioner's Claims

A. Due Process

Petitioner's first claim is that the Board's 2008 decision finding him unsuitable for parole violated his federal right to due process because it was not based on "some evidence" that he posed a current danger to society if released from prison. Pet. at 5, 30-36.

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).

A protected liberty interest may arise from either the Due Process Clause of the United States Constitution "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."); see also Hayward v. Marshall, 603 F.3d 546, 561 (9th Cir. 2010) (en banc).

However, "a state's statutory scheme, if it uses mandatory language, 'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." Greenholtz, 442 U.S. at 12). See also Allen, 482 U.S. at 376-78.

California's parole scheme*fn3 gives rise to a liberty interest in parole protected by the federal due process clause. McQuillion v. Duncan, 306 F.3d 895, 902-03 (9th Cir. 2002) ("California's parole scheme gives rise to a cognizable liberty interest in release on parole."); see Swarthout v. Cooke, No. 10-333, 562 U.S. ___, 2011 U.S. LEXIS 1067, *5-6 (Jan. 24, 2011) (per curiam) (stating that the Ninth Circuit's determination that California's parole law creates a liberty interest protected by the federal due process clause "is a reasonable application of our cases."). However, the United States Supreme Court has held that correct application of California's "some evidence" standard is not required by the federal Due Process Clause. Swarthout, 2011 WL 197627, at *2. Rather, this court's review is limited to the narrow question of whether the petitioner has received adequate process for seeking parole. Id. at *3. ("Because the only federal right at issue is procedural, the relevant inquiry is what process [petitioner] received, not whether the state court decided the case correctly.") Adequate process is provided when the inmate is allowed a meaningful opportunity to be heard and a statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners were "allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied"); see also Greenholtz, 442 U.S. at 16.

Here, the record reflects that petitioner was present at the 2008 parole hearing, that he participated in the hearing, and that he was provided with the reasons for the Board's decision to deny parole. Pursuant to Swarthout, this is all that due process requires. Accordingly, petitioner is not entitled to relief on his due process claim.

B. Ex Post Facto

In claims Two and Three, petitioner argues that the Board's 2008 decision finding him unsuitable for parole violated the Ex Post Facto Clause.

Petitioner was convicted of first-degree murder and sentenced to life imprisonment under California's Indeterminate Sentencing Law (ISL) in 1976. In 1977, California repealed the ISL and enacted the current Determinate Sentencing Law (DSL). Petitioner has been considered for parole under DSL guidelines since that time and has been found unsuitable for release at all suitability hearings conducted after his parole date was rescinded in 1987. Petitioner argues that the Board violated the Ex Post Facto Clause when it found him unsuitable for parole based on the DSL guidelines and not on the ISL guidelines. He contends that under ISL standards he would have been released by now.*fn4 Petitioner also argues that, since the date of his conviction, the rules relating to parole suitability have been altered to the detriment of prisoners like himself who are seeking release on parole, and that retroactive application of the new rules to him have created a significant risk that he has served a longer sentence than he would have served under the prior law. Pet. at 7, 35-47. In essence, petitioner is arguing that application of the current parole regulations to him violates the Ex Post Facto Clause.

The Constitution provides that "No State shall . . . pass any . . . ex post facto Law." U.S. Const. art. I, § 10. A law violates the Ex Post Facto Clause of the United States Constitution if it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makes a crime's punishment greater than when the crime was committed; or (3) deprives a person of a defense available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). The Ex Post Facto Clause "is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts." Himes v. Thompson, 336 F.3d 848, 854 (9th Cir. 2003) (quoting Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). See also Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is also violated if: (1) state regulations have been applied retroactively to a defendant; and (2) the new regulations have created a "sufficient risk" of increasing the punishment attached to the defendant's crimes. Himes, 336 F.3d at 854. Not every law that disadvantages a defendant is a prohibited ex post facto law. The retroactive application of a change in state parole procedures violates ex post facto only if there exists a "significant risk" that such application will increase the punishment for the crime. See Garner v. Jones, 529 U.S. 244, 259 (2000).

Here, the Board's application of the DSL guidelines did not increase petitioner's sentence: petitioner's sentence of seven years to life carries no guaranteed parole date but rather carries with it the potential that he could serve the entire term. Further, any changes between ISL and DSL standards of parole do not change the definition of the crime nor increase the punishment for murder because "the DSL guidelines require consideration of the same criteria as did the ISL." Connor v. Estelle, 981 F.2d 1032, 1034 (9th Cir. 1992). Accordingly, the application of the DSL parole-suitability guidelines to prisoners sentenced under the ISL does not violate the federal constitutional prohibition against ex post facto laws. Id. The California Supreme Court has held that a prisoner sentenced under the ISL is entitled to have his release date calculated under either the ISL or DSL procedures, whichever is more beneficial. See In re Stanworth, 33 Cal.3d 176 (1982). Accordingly, petitioner is not disadvantaged by application of either standard.

The Ninth Circuit, district courts within the Ninth Circuit, and California state courts have all rejected Ex Post Facto arguments similar to those petitioner raises here. These courts reason that the enactment of the DSL did not alter the relevant criteria for determining parole suitability under the Indeterminate Sentencing Law ("ISL"), and that, therefore, the application of DSL standards to prisoners sentenced under the ISL does not violate the Ex Post Facto Clause. See, e.g., Barker v. Board of Prison Terms, No. 07-15100, 2010 WL 2961266, at *1 (9th Cir. July 23, 2010); Jones v. Calif. Bd. of Prison Terms, 239 Fed. Appx 372 (9th Cir. 2007) (petitioner's constitutional challenges to application of DSL standards to parole proceedings "are foreclosed by this court's decision in Connor v. Estelle" ); Baker v. Kramer, No. CIV S-08-0311 FCD DAD P, 2010 WL 1027537, at *13 (E.D. Cal. Mar.18, 2010), adopted, 2010 WL 1795862 (E.D. Cal. May 4, 2010); Delaplane v. Marshall, No. CV 08-2306-JFW (MAN), 2009 WL 3806261, at *16 (C.D. Cal. Nov.12, 2009); In re Duarte, 143 Cal.App.3d 943, 951 (1983); In re Seabock, 140 Cal.App.3d 29, 40 (1983). Petitioner has not cited any United States Supreme Court authority supporting the Ex Post Facto arguments that he raises in the instant petition. See 28 U.S.C. § 2254(d).

Petitioner argues he can demonstrate that the Board's reliance in 2008 on changed parole statutes resulted in a "significant risk" that he would suffer increased punishment for his crime because he was found suitable for parole under earlier standards but has failed to obtain a parole date under current standards. This argument is a non sequitur. The parole date that petitioner was given in 1984 was later rescinded because he committed a disciplinary offense, thereby demonstrating that he was no longer suitable for parole. Petitioner did not lose his parole date because of the Board's reliance on regulations promulgated under the DSL. For this reason, the fact that petitioner was found suitable for parole in 1984 has no bearing on whether the Board violated the Ex Post Facto Clause when it found him unsuitable in 2008.

Petitioner cites Nulph v. Faatz, 27 F.3d 451 (9th Cir. 1994) and Brown v. Palmateer, 379 F.3d 1089, 1091 (9th Cir. 2004) in support of his Ex Post Facto claims. Pet. at 42. Those cases recognized that "if the new law is not disadvantageous to defendants in general, an individual will satisfy the detriment requirement [of an ex post facto challenge] if he shows that it can 'be said with assurance' that he would have received less severe punishment under the prior scheme." Nulph, 27 F.3d at 456. Petitioner has failed to make that showing. In any event, Brown and Nulph involved challenges to two different Oregon laws, whereas the instant case involves a challenge to California laws. These cases are therefore distinguishable on that basis.

Petitioner also complains that California Penal Code § 3041.5 has been amended several times since the date of his conviction to allow for longer periods of time between parole suitability hearings. Pet. at 40, n.1. Ex Post Facto challenges to those amendments have all been rejected. See Morales, 514 U.S. at 509 (1981 amendment to Cal. Penal Code § 3041.5, which increased maximum deferral period of parole suitability hearings to five years did not violate the Ex Post Facto Clause because it simply altered the method of setting a parole release date and did not create a meaningful "risk of increasing the measure of punishment attached to the covered crimes"); Watson v. Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989) (not a violation of the Ex Post Facto Clause to apply § 3041.5(b)(2)(A) to prisoners sentenced to life imprisonment prior to the implementation of California's Determinate Sentence Law in 1977); Clifton v. Attorney General Of the State of California, 997 F.2d 660, 662 n.1 (9th Cir. 1993) (same). See also Garner v. Jones, 529 U.S. 244, 249(2000) (upholding Georgia's change in the frequency of parole hearings for prisoners serving life sentences, from three to eight years, in an action brought pursuant to 42 U.S.C. § 1983).*fn5

In light of the above, the state court's rejection of petitioner's Ex Post Facto claims was neither contrary to, nor an unreasonable application of, controlling principles of United States Supreme Court precedent. Therefore, petitioner is not entitled to habeas relief on those claims.

IV. Request for Evidentiary Hearing

Petitioner requests an evidentiary hearing on "any disputed facts." Pet. at 48. Pursuant to 28 U.S.C. § 2254(e)(2), an evidentiary hearing is appropriate under the following circumstances:

(e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-

(A) the claim relies on(I) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense[.]

Under this statutory scheme, a district court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support a petitioner's claims and, if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that he has presented a "colorable claim for relief." Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). To show that a claim is "colorable," a petitioner is "required to allege specific facts which, if true, would entitle him to relief." Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted).

The court concludes that no additional factual supplementation is necessary in this case and that an evidentiary hearing is not appropriate with respect to the claims raised in the instant petition. The facts alleged in support of these claims, even if established at a hearing, would not entitle petitioner to federal habeas relief. Therefore, petitioner's request for an evidentiary hearing should be denied.

V. Conclusion


1. Petitioner's request for an evidentiary hearing be denied;

2. Petitioner's application for a writ of habeas corpus be denied; and

3. The Clerk be directed to close the case.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

In any objections he elects to file, petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant); Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of appealability to review the denial of a habeas petition challenging an administrative decision such as the denial of parole by the parole board).

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