UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 26, 2011
GARY SWATHOUT, RESPONDENT.
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION WITH LEAVE TO FILE AN AMENDED PETITION NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER (DOC.1)
ORDER DIRECTING THE CLERK TO SEND TO PETITIONER A FORM PETITION PURSUANT TO § 2254
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the petition, which was filed on August 19, 2011.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
Here, Petitioner alleges that he is an inmate of the Avenal State Prison (ASP) serving a sentence of fifteen (15) years to life plus seven (7) years for a conviction of second degree murder sustained in 1982 in the Superior Court for the County of San Francisco. He challenges the denial of parole by California's Board of Parole Hearings (BPH), which appears to have been determined after a hearing held on April 6, 2010. (Pet., Ex. A, doc. 1, 9.)
Petitioner raises the following claims in the petition: 1) the BPH violated Petitioner's right to due process of law by relying on the commitment offense because the commitment offense lacked any predictable value; 2) the BPH violated Petitioner's right to due process of law by relying on a psychological evaluation of Petitioner and on Petitioner's lack of insight; 3) the BPH violated Petitioner's rights under Apprendi v. New Jersey and Blakely v. Washington by relying on the psychological evaluation and factors relevant to parole suitability that were not presented to a jury and found true beyond a reasonable doubt; and 4) the BPH violated Petitioner's First Amendment rights by ordering him to attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA), which are religiously based programs. (Pet. 4-5.)
II. Exhaustion of State Court Remedies
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court reiterated the rule as follows:
In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct' alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.
Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001), stating:
Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7... (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865.
In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is.
Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001).
Where none of a petitioner's claims has been presented to the highest state court as required by the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The authority of a court to hold a mixed petition in abeyance pending exhaustion of the unexhausted claims has not been extended to petitions that contain no exhausted claims. Raspberry, 448 F.3d at 1154.
Here, Petitioner states that other than a direct appeal from his conviction, he has not filed any petitions or application with respect to the "judgment." (Pet. 2.) Petitioner does not allege that he has presented the claims he sets forth in the petition to the highest state court. However, it is possible that Petitioner has done so because attached to the petition is a copy of an order of the California Supreme Court denying a petition for writ of habeas corpus dated July 20, 2011. (Pet. 7.) Thus, Petitioner will be given an opportunity to allege exhaustion of state court remedies in an amended petition.
III. Failure to Allege Cognizable Due Process Claims
Concerning the Evidence before the Board of Parole
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).
The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures with respect to the liberty interest. Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011).
However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979). *fn1
Swarthout v. Cooke, 131 S.Ct. 859, 862. In Swarthout, the Court rejected inmates' claims that they were denied a liberty interest because there was an absence of "some evidence" to support the decision to deny parole. The Court stated:
There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication--and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California's received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.)
Swarthout, 131 S.Ct. 859, 862. The Court concluded that the petitioners had received the process that was due as follows:
They 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....
That should have been the beginning and the end of the federal habeas courts' inquiry into whether [the petitioners] received due process.
Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly noted that California's "some evidence" rule is not a substantive federal requirement, and correct application of California's "some evidence" standard is not required by the Federal Due Process Clause. Id. at 862-63.
Here, in his first and second claims, which concern the BPH's and state courts' reliance on Petitioner's commitment offense, a psychological evaluation, and Petitioner's lack of insight to find Petitioner unsuitable for release on parole, Petitioner is challenging the application of the "some evidence" rule. Petitioner thus asks this Court to engage in the very type of analysis foreclosed by Swarthout. Petitioner does not state facts that point to a real possibility of constitutional error or that otherwise would entitle Petitioner to habeas relief because California's "some evidence" requirement is not a substantive federal requirement. Review of the record for "some evidence" to support the denial of parole is not within the scope of this Court's habeas review under 28 U.S.C. § 2254.
Petitioner also claims that the BPH's reliance on a lack of insight was improper because it was not a part of California's criteria for unsuitability. Petitioner relies on state law in connection with this claim. (Pet. 4.)
To the extent that Petitioner's claim rests on state law, it is not cognizable on federal habeas corpus. Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. - , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).
Thus, in his first and second claims, Petitioner has failed to allege a claim that is within this Court's scope of review pursuant to 28 U.S.C. § 2254.
Although in this respect Petitioner has failed to allege a claim cognizable in this proceeding, a petition for 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).
Here, Petitioner has not alleged that he failed to receive an opportunity to be heard or a statement of reasons for the BPH's decision. The full record of the proceedings before the BPH is not before this Court as Petitioner does not attach any transcripts. It is thus possible that Petitioner could allege a tenable claim for relief pursuant to the Due Process Clause and Swarthout v. Cooke, 131 S.Ct. 859 (2011).
Accordingly, although Petitioner's due process claims concerning the evidence must be dismissed, Petitioner will be given an opportunity to file a first amended petition.
IV. Apprendi Claim
Petitioner alleges that the BPH violated his rights under Apprendi v. New Jersey and Blakely v. Washington by relying on the psychological evaluation and factors relevant to parole suitability that were not presented to a jury to find beyond a reasonable doubt. The Court understands the references to be to Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).
In Apprendi, the Court held that any fact other than a prior conviction that is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by a defendant or proved to a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490; United States v. Booker, 543 U.S. 220, 244 (2005). In Blakely v. Washington, 542 U.S. 296, 303 (2004), the Court held that the "statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303. In California, an indeterminate sentence of fifteen years to life is in legal effect a sentence for the maximum term of life, subject only to the power of the parole authority to set a lesser term. People v. Dyer, 269 Cal.App.2d 209, 214 (1969).
Here, in denying parole, the BPH did not increase Petitioner's sentence beyond the statutory maximum of life imprisonment for second degree murder. See, Cal. Pen. Code § 190(a). Accordingly, Petitioner has not stated facts concerning an Apprendi claim that would entitle him to relief.
Further, the Court is mindful of the discretionary and predictive evaluations made by the BPH in considering release of an inmate on parole. See, Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 9-10 (1979). The Court is not aware of any Supreme Court authority applying the principles of Apprendi to parole proceedings. The Court notes that Petitioner was not entitled to a jury trial or proof beyond a reasonable doubt in his parole proceedings. United States v. Knights, 534 U.S. 112, 120 (2001) (no right to jury trial or proof beyond a reasonable doubt in proceedings to revoke probation); United States v. Huerta-Pimentel, 445 F.3d 1220, 1225 (9th Cir. 2006) (a judge's finding by a preponderance of the evidence that a defendant violated the conditions of supervised release does not raise a concern regarding the Sixth Amendment); see, Swarthout v. Cooke, 131 S.Ct. at 862. Instead, Petitioner was entitled to the relatively minimal processes of Greenholtz. Thus, it would not appear that Apprendi, which concerns a right to jury trial and proof beyond a reasonable doubt to a jury, would be applicable to parole proceedings.
The Court concludes that Petitioner did not allege facts showing a denial of his right to due process of law by the absence of a jury trial. It appears unlikely that Petitioner could allege facts that would entitle him to relief pursuant to the reasoning of Apprendi and Blakely. However, in an abundance of caution, Petitioner will be given leave to amend his petition with respect to this claim.
V. First Amendment Claim
Petitioner argues that the BPH violated his First Amendment rights by ordering him to attend AA or NA, which he alleges are religiously based programs. (Pet. 5.)
In Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007), the court considered whether state parole authorities had qualified immunity in a § 1983 suit by a plaintiff who alleged that as a condition of parole, they required his attendance in drug treatment programs (AA and NA) rooted in a regard for a higher power. In response to the argument of a defendant supervisory parole officer that the law was not clearly established at the time, the court held that the law "was and is very clear, precluding qualified immunity...." Inouye, 504 F.3d at 711-12. The court found that there had been consistent articulation of the principle that the government may not coerce anyone to support or participate in religion or its exercise, or punish anyone for not so participating. Id. at 713 (citing Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947) and Lee v. Weisman, 505 U.S. 577, 587 (1992)). The court further noted that the basic test for Establishment Clause violations remains that stated in Lemon v. Kurtzman, 403 U.S. 602, 613 (1971), namely, that the government acts 1) have a secular legislative purpose, 2) not have a principal or primary effect which either advances or inhibits religion, and 3) not foster an excessive government entanglement with religion. Id. at 713 n.7. The court concluded that recommending revocation of parole for a parolee's failure to attend the programs following an order to participate was unconstitutionally coercive. Id. at 713-14. In finding the law clear, the court in Inouye relied not only on lower court decisions but also in part on the decisions of the United States Supreme Court and the absence of any Supreme Court case upholding government-mandated participation in religious activity in any context. Id. at 715.
Further, in Turner v. Hickman, 342 F.Supp.2d 887 (E.D.Cal. 2004), a Christian inmate alleged that parole authorities expressly conditioned the plaintiff's eligibility for release on parole in part upon participation in NA. Id. at 890. This Court concluded that by repeated application of the "coercion" test set forth in Lee v. Weisman, 505 U.S. 577, 587 (1992), the Supreme Court had made the law clear. Turner, 342 F.Supp.2d at 894. By expressly telling the plaintiff he needed to participate in NA to be eligible for parole, the state had acted coercively to require participation in a program in which the evidence showed that belief in "God" was a fundamental requirement of participation. Id. at 895-96. Accordingly, the First Amendment prohibited the requirement. Id. at 896-99. Even if the Court proceeds on the understanding that there is clearly established federal law as determined by the Supreme Court of the United States that prohibits punishing an inmate for failing to participate in AA or NA, or coercing an inmate to participate in NA or AA religious activities, Petitioner is not entitled to relief.
Petitioner alleged generally that the BPH violated his rights by requiring him to attend the programs. (Pet. 5.) Petitioner alleged no other specific facts concerning the conduct of the BPH of which he complains. However, Petitioner appended to the petition a copy of a decision of the Superior Court of California, County of San Francisco, in which the court denied a petition for writ of habeas corpus filed by Petitioner challenging the denial of parole. (Pet. 9-19.) The decision provides as follows:
Here the petitioner was not ordered to attend AA meetings. The Board noted his lack of participating in self-help and substance abuse programs, noting that in 2006 he had participated in a "Zero Tolerance" self-help program. The Board also commended him for having attended AA for a long span, but pointed out that he had not participated since 2003. The Board said "we commend you for the participation back then and encourage you to re-involved [sic] yourself in some type of substance abuse programming and make that an extension of your parole planning." (Decision 10:12-15.) (Pet. 18:14-23.)
It thus appears from the documents attached to the petition submitted by Petitioner that in denying Petitioner's parole, the BPH did not coerce Petitioner into participation in a religious program. Instead, the BPH encouraged Petitioner to involve himself anew in "some type of" substance abuse programming in connection with planning for release on parole. It appears that Petitioner retained some element of choice with respect to the precise program. No religious programming was required by the BPH. The element of coercion necessary for a claim under the First Amendment is thus shown by the record to be lacking. With respect to this claim, Petitioner has failed to state facts showing that he is entitled to relief.
However, it is possible that Petitioner could allege a tenable First Amendment claim. Accordingly, Petitioner will be given an opportunity to amend the petition to allege facts entitling him to relief.
VI. Leave to File a First Amended Petition
The instant petition must be dismissed for the reasons stated above. Petitioner will be given an opportunity to file a first amended petition to cure the deficiencies. Petitioner is advised that failure to file a petition in compliance with this order (i.e., a completed petition with cognizable federal claims clearly stated and with exhaustion of state remedies clearly stated) within the allotted time will result in a recommendation that the petition be dismissed and the action be terminated. Petitioner is advised that the amended petition should be entitled, "First Amended Petition," and it must refer to the case number in this action. Further, Petitioner is informed that Local Rule 220 provides that unless prior approval to the contrary is obtained from the Court, every pleading as to which an amendment or supplement is permitted shall be retyped or rewritten and filed so that it is complete in itself without reference to the prior or superseded pleading.
Accordingly, it is ORDERED that:
1) The petition for writ of habeas corpus is DISMISSED with leave to amend; and
2) Petitioner is GRANTED thirty (30) days from the date of service of this order to file a first amended petition in compliance with this order; and
3) The Clerk of the Court is DIRECTED to send Petitioner a form petition pursuant to 28 U.S.C. § 2254; and
4) Petitioner is INFORMED that a failure to comply with this order will be considered to be a failure to comply with an order of the Court pursuant to Local Rule 110 and will result in dismissal of the petition.
IT IS SO ORDERED.