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Michael F. Devries v. Matthew Cate


July 14, 2011


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Michael F. DeVries, a state parolee appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. DeVries is currently in the custody of the California Department of Corrections and Rehabilitation on parole. Respondent has answered, and DeVries has replied. DeVries challenges the decision of the Governor reversing the decision of the California Board of Parole Hearings ("Board") that granted him parole. DeVries does not challenge his conviction or sentence in this proceeding.


Following his conviction for Murder in the Second Degree (Cal. Penal Code § 187) with a use of firearm enhancement (Cal. Penal Code § 12022.5) May 23, 1986, DeVries was sentenced to an indeterminate prison term of from 17 years to life. In April 2007 the Governor reversed the decision of the Board finding DeVries suitable for parole. DeVries timely filed a petition for habeas corpus relief in the Alameda County Superior Court, which was denied in an unreported, reasoned decision. DeVries's subsequent petition for habeas relief to the California Court of Appeal was summarily denied without opinion or citation to authority, and the California Supreme Court summarily denied review on March 26, 2008. DeVries timely filed his Petition for relief in this Court on April 8, 2008.

While this case was pending, the Court of Appeals for the Ninth Circuit handed down its decision in Hayward v. Marshall.*fn2 This Court ordered the parties to file supplemental briefing addressing the impact of Hayward on this case.*fn3 Petitioner filed a supplemental brief and requested appointment of counsel.*fn4 Respondent has filed a supplemental brief.*fn5 Both parties have indicated that DeVries has been released on parole.


In his Petition, DeVries raises seven grounds. In his first, second, third, fourth and sixth grounds, DeVries contends that the Governor: (1) improperly relied on the gravity of DeVries's underlying commitment offense; (2) considered facts that were not before the Board or established by the record; (3) failed to consider all the relevant facts; (4) misapplied the relevant provisions of the California Penal Code; and (6) denied him the right to counsel during the Governor's review process. In his fifth ground, DeVries contends that the Board adopted a "one- year-parole denial" policy in scheduling his subsequent parole suitability hearing date contrary to California law. In his seventh ground, DeVries contends that the adoption of California Penal Code § 3041.2 (providing for gubernatorial review of Board decisions) violated the Ex Post Facto Clause of the United States Constitution. Respondent contends that DeVries's second ground is procedurally barred. Respondent raises no other affirmative defense.*fn6


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."*fn7 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."*fn8 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.*fn9 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.'"*fn10 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.*fn11 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.*fn12 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn13 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn14

In applying this standard, this Court reviews the last reasoned decision by the state court.*fn15 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn16 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn17 This is considered as the functional equivalent of the appeal process.*fn18


A. Appointment of Counsel

At Docket No. 18, DeVries has requested appointment of counsel. There is no constitutional right to counsel in federal habeas proceedings.*fn19 Appointment of counsel is not required in a habeas corpus proceeding in the absence of an order granting discovery or an evidentiary hearing.*fn20 This Court may appoint counsel under the Criminal Justice Act in this case if the Court determines that the interests of justice so require.*fn21 This Court does not so determine.

B. Merits

After the parties filed their supplemental briefing, the United States Supreme Court decided Swarthout v. Cooke.*fn22 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.*fn23 Thus, Cooke forecloses DeVries's arguments vis-a-vis the "some evidence" rule, a requirement of California law, as well as DeVries's other arguments to the extent they are based upon alleged violations of California law.

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 Cooke is so clear that further briefing would unduly prolong this 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 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.*fn24 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.*fn25 Because the only federal right at issue in this case is procedural, the relevant inquiry is whether DeVries received due process.*fn26 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.*fn27 In his first five grounds, DeVries contends that the decision of the Governor was contrary to California law, including being unsupported by "some evidence," also a requirement of California law.*fn28 "[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."*fn29

California prisoners are allowed to speak at their parole hearings and to contest the evidence against them, they 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.*fn30 "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension."*fn31 The Supreme Court has yet to hold that a prisoner has a constitutional right to counsel at a parole hearing. Thus, with respect to his first six grounds, in light of Cooke, DeVries has failed to establish a wrong of constitutional dimension.

Cooke does not, however, dispose of DeVries's seventh ground, that the grant of gubernatorial veto power over Board decisions violates the Ex Post Facto Clause. In rejecting DeVries's ex post facto argument, the Alameda Superior Court held:

The Ex Post Facto Claim Lacks Merit

Lastly, Petitioner's claim that the Governor's reversal violates the prohibition of ex post facto application of the law fails to state a prima facie case for relief. Our Supreme Court's decision in Rosenkrantz rejected this very argument. (Rosenkrantz, supra, 29 Cal.4th at p. 636-652.)*fn32

In Garner, the Supreme Court made clear that retroactive changes to a state's parole laws may, in some instances, be violative of the Ex Post Facto Clause.*fn33 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."*fn34 However, a change in the law that does nothing more than alter the method of granting parole under identical substantive standards does not implicate the Ex Post Facto Clause.*fn35 In Rosenkrantz, the California Supreme Court rejected an ex post facto challenge to the application of the 1968 amendment to the California constitution, holding:

Furthermore, article V, section 8(b), did not make any changes in the substantive standard that governs the determination of petitioner's suitability for parole; indeed, article V, section 8(b), explicitly provides that the Governor, in reviewing the parole board's decision, is to apply the same factors as the Board. The only change effected by article V, section 8(b), is the institution of an additional level of discretionary review of the Board's decision granting or denying parole, resulting merely in a change in the identity of the entity or official within the executive branch that may make the ultimate decision on parole. Prior to the adoption of article V, section 8(b), the only reasonable expectation that an individual in petitioner's position would have had with regard to punishment was that he or she would receive a sentence of 15 years to life imprisonment and that, after serving the minimum term, he or she would be entitled to have a public official exercise discretion with regard to his or her suitability for parole under then existing standards. Such an individual in petitioner's position had no reasonable expectation regarding the identity of the person or persons who would exercise discretion in evaluating his or her suitability for parole, or that the person or persons who would make such a decision would not change over time. Accordingly, under the ordinary meaning of the controlling language in Collins, it appears clear that the application of the procedure set forth in article V, section 8(b), to an individual who committed a criminal offense prior to its enactment does not increase the punishment for such crime.*fn36

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.*fn37 The Supreme Court has also noted that the possibility of immediate release is largely "theoretical" because, in many cases, a prisoner's release date comes at least several years after a finding of suitability.*fn38 Thus, the question before this Court is whether the decision of the California Supreme Court in Rosenkrantz 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. It does not.*fn39 DeVries is not entitled to relief under his seventh ground.


DeVries is not entitled to relief under any ground raised in his Petition. Accordingly, IT IS THEREFORE ORDERED THAT DeVries's request for the appointment of Counsel is DENIED.

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 the Court declines to issue a Certificate of Appealability.*fn40 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn41

The Clerk of the Court is to enter judgment accordingly.

James K. Singleton, Jr.

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