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David Hillary v. D.K. Sisto


May 2, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2007 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole.

On February 2, 2011, the undersigned ordered both parties to provide briefing regarding the recent United States Supreme Court decision that found that the Ninth Circuit erred in commanding a federal review of the state's application of state law in applying the "some evidence" standard in the parole eligibility habeas context. Swarthout v. Cooke, 502 U.S. ___, 131 S. Ct. 859, 861 (2011).*fn1

The parties have timely filed briefing, yet for the reasons set forth in the prior order, and notwithstanding petitioner's argument, it appears there is no federal due process requirement for a "some evidence" review, thus the federal courts are precluded from a review of the state court's application of its "some evidence" standard.*fn2 Petitioner, who pled guilty and was sentenced in 1995 to 20 years to life for second degree murder with use of a firearm, makes the following claims about his parole denial at his initial parole suitability hearing: 1) his liberty interest in parole was denied by BPH absent a preponderance of the evidence; 2) BPH is obligated to set a release date for life term inmates unless an inmate poses a significant public safety risk; 3) & 4) petitioner's positive efforts, in accordance with parole guidelines, over fifteen years for parole suitability outweigh negative factors; 5) BPH has altered his life sentence to life without the possibility of parole or death, an ex post facto clause violation. Petition, pp. 1-31.

As to petitioner's claims 1 through 4, the gravamen of these claims is an alleged violation of California's "some evidence" requirement. As to any "some evidence" claim, this court's review of the BPH hearing transcript confirms that petitioner received all the process that was due in having been "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout, at 862; Answer, docket # 17-1, pp. 31-143, docket # 17-2, pp. 1-52.*fn3 Thus, on his "some evidence" claim, the petition should be denied.

As to petitioner's claim 5, he alleges that when he entered his guilty plea to second degree murder, neither the district attorney nor the sentencing court established that his crime had been committed "in a very cruel, callous and calculated manner," although the BPH did so determine, thus amounting to an enhancement not found by the court in violation of petitioner's Sixth Amendment right.*fn4 Petition, p. 20. Petitioner cites Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004); and Cunningham v. California, Apprendi and its progeny do not apply because, with death of a peace officer exceptions not relevant here, the invariable sentence is 15 years to life. Cal. Penal Code § 190(a).*fn5 This is the alpha and omega of the resolution here. Petitioner mistakes the BPH as part of the judicial system involved in sentencing. It is not. It is a state agency tasked with reviewing parole eligibility which may take into account a myriad of discretionary factors. Nothing in Apprendi or Blakely applies to such agency decision making. Nor is there any fact finding involved in setting the sentence for second degree murder. Once the jury has convicted a defendant of second degree murder, the term of imprisonment is 15 years to life (plus any applicable statutory enhancements which may, or may not, involve Apprendi issues). The term is 15 years to life regardless of the particular circumstances of the crime such as callousness, cruelty and the like.

There being no ground upon which petitioner can proceed, this petition should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that the petition be denied.

If petitioner files objections, he shall also address if a certificate of appealability should issue and, if so, as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).

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." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Gregory G. Hollows


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