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Lamerle Ronnie Johnson v. Mike Martel


August 9, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Petitioner is a state prisoner proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases. Respondent argues petitioner fails to state a cognizable federal habeas corpus claim for relief and that petitioner's claims are successive. Petitioner filed an opposition, and respondent filed a reply. For the reasons stated below, the court recommends that respondent's motion to dismiss be granted, and, that the petition be dismissed.

Petitioner challenges the state court's denial of habeas relief in connection with the 2009 decision of the Board of Parole Hearings ("Board") finding petitioner unsuitable for parole.

II. Standards

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, Rules Governing Section 2254 Cases; see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated"). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

III. Petitioner's Procedural Due Process Claims

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). 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."). 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; seealso Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a state's use of mandatory language ("shall") creates a presumption that parole release will be granted when the designated findings are made.).

California's parole statutes give rise to a liberty interest in parole protected by the federal due process clause. Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011). In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that "[n]o opinion of [theirs] supports converting California's 'some evidence' rule into a substantive federal requirement." Swarthout, 131 S. Ct. at 864. In other words, the Court specifically rejected the notion that there can be a valid claim under the Fourteenth Amendment for insufficiency of evidence presented at a parole proceeding. Id. at 864. Rather, the protection afforded by the federal due process clause to California parole decisions consists solely of the "minimal" procedural requirements set forth in Greenholtz, specifically "an opportunity to be heard and . . . a statement of the reasons why parole was denied." Swarthout, 131 S. Ct. at 863-64.

Here, the record reflects that petitioner was present at the 2009 parole hearing, that he participated in the hearing, and that he was provided with the reasons for the Board's decision to deny parole. (Dkt. No. 11-1 at 32-96; 11-2 at 1-29.) According to the United States Supreme Court, the federal due process clause requires no more.*fn1 Therefore, respondent's motion to dismiss should be granted.

IV. Petitioner's Alleged Conflict of Interest Claims

The San Mateo District Attorney opposed parole for petitioner. To the extent petitioner contends that this opposition was a "conflict of interest," petitioner's claim is unavailing. There is no federal constitutional right implicated by this claim. Although opposition to parole by law enforcement is to be considered during the parole process, California Penal Code § 3046(c), "voiced opposition to parole is not an enumerated unsuitability factor . . . and such argument is not evidence of unsuitability." Saldate v. Adams, 573 F. Supp. 2d 1303, 1310 (E.D. Cal. 2008). Therefore, this allegation should be dismissed for failure to state a cognizable habeas claim.

Petitioner also alleges that the San Mateo County Superior Court had a conflict of interest because Presiding Justice Stephen Hall, the Deputy District Attorney who prosecuted petitioner, allegedly assigned one of Hall's subordinate judges to rule on petitioner's collateral petitions for habeas corpus. Petitioner states that, in the "People's Statement Under Penal Code Section 1203.1," filed January 18, 1996, Deputy District Attorney Stephen M. Hall specifically asked that petitioner never be granted parole. (Dkt. No. 1 at 187.) Petitioner argues that this situation constitutes a conflict of interest.

Respondent argues that because petitioner's habeas claims were subsequently reviewed de novo by the state appellate and supreme courts, and petitioner does not allege any conflict with these higher courts, petitioner's claim must fail. (Dkt. No. 11 at 5.) In opposition, petitioner contends that it was only the superior court that rendered a reasoned opinion, and therefore, the superior court was able to rule on its own conflict. (Dkt. No. 12 at 4.) Petitioner then goes on to argue facts surrounding his arrest and plea negotiations. (Id., at 4-5.)

On June 10, 2010, the San Mateo County Superior Court ruled on petitioner's conflict claims as follows:

To the extent that the claims were disposed of in earlier petitions, this habeas petition is denied. To the extent that the claims were not raised in earlier petitions, this habeas petition is denied because it is an impermissible successive petition. (In re Clark (1993) 5 Cal.4th 750, 768 (a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him).)

(Dkt. No. 11-4 at 6.) Petitioner appealed, and the Court of Appeal for the First Appellate District denied the petition for writ of habeas corpus without comment. (Dkt. No. 11-4 at 52.) Petitioner appealed, and on February 23, 2011, the California Supreme Court denied the petition without comment. (Dkt. No. 11-5 at 34.)

First, to the extent petitioner is attempting to re-argue allegations surrounding petitioner's arrest, plea negotiations, and testimony on behalf of the prosecution in other criminal proceedings, such claims are successive. Petitioner should refrain from raising these claims in any subsequent Board challenges. Petitioner, convicted in November of 1995, attempted to litigate these claims in a habeas petition filed in November of 2002. Johnson v. Knowles, 541 F.3d 933 (9th Cir. 2008). The dismissal of this petition as barred by the statute of limitations was affirmed by the Court of Appeals for the Ninth Circuit on September 2, 2008. Id.

Second, petitioner's claim that there was a conflict of interest because a former district attorney who, in January of 1996, argued that petitioner should spend his life in prison, allegedly assigned petitioner's state habeas petition to a San Mateo County Superior Court judge for adjudication, fails to state a cognizable habeas claim. As respondent argued, the superior court's decision was reviewed de novo by both the appellate court and the California Supreme Court. Summary denials are entitled to deference under 28 U.S.C. § 2254. Harrington v. Richter, 131 S. Ct. 770, 785 (2011).

Thus, petitioner's alleged conflict of interest claims should also be dismissed.

V. Alleged No Parole Policy

Petitioner contends that the Board's decisions are predetermined as part of an allegedly underground policy. However, petitioner fails to provide any admissible evidence of such a policy, instead relying on hearsay statements from a Board Commissioner during another inmate's parole hearing. Petitioner fails to establish the predicate of his claim, that is, that the Board has such a policy. Petitioner fails to cite any relevant federal legal authority supporting this claim and fails to demonstrate that such a policy was applied to him. Thus, petitioner's claim in this regard is vague and conclusory and should be denied on that basis. SeeJones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) ("conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief") (quotations and internal citation omitted). Accordingly, this claim should also be dismissed.

VI. Conclusion

For all of the above reasons, IT IS HEREBY RECOMMENDED that:

1. Respondent's June 3, 2011 motion to dismiss (dkt. no. 11) be granted;

2. The petition for writ of habeas corpus be dismissed.

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 twenty-one 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." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and 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)(3). Any response to the objections shall be filed and served 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).

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