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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 ...

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