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Englebert Perlas v. Gary Swarthout

August 31, 2011

ENGLEBERT PERLAS, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding without counsel on a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. He challenges the November 10, 2009 decision of the California Board of Parole Hearings ("Board") to deny him parole. Petitioner claims that the Board's decision violated his right to due process because it was not supported by some evidence of his current dangerousness. He also claims the Board violated the Ex Post Facto Clause by deferring his subsequent parole suitability hearing for three years pursuant to Marsy's Law. Petitioner also requests appointment of counsel. Respondent moves to dismiss the petition on the ground it fails to state cognizable grounds for federal habeas relief, and raises a challenge that is the subject of a pending class action suit. For the reasons that follow, the undersigned will deny the request for counsel and recommend that the motion to dismiss be granted.

I. Request for Counsel

In his petition, petitioner requests that the court appoint him counsel. Dckt. No. 1 at 20.*fn1

There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court may appoint counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing § 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings.

II. Respondent's Motion to Dismiss

Respondent moves to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases. This court has authority under Rule 4 to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." As a corollary to that rule, the court may also consider a respondent's motion to dismiss, filed in lieu of an answer, on the same grounds. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as the procedural vehicle to review a motion to dismiss for state procedural default).

A Due Process Claim

Petitioner contends that the Board's 2009 decision to deny him parole violated his right to due process because it was not supported by some evidence that he posed an unreasonable risk of danger to society. Dckt. No. 1 at 6, 25-31. Petitioner argues further that there was no nexus between the Board's findings for denying parole and a current unreasonable risk to the public were he paroled. Id. at 31. Respondent moves to dismiss this claim because it is not cognizable in federal habeas. Mot. at 5.

Under California law, a prisoner is entitled to release 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 696, 651-53 (2002). According to the United States Supreme Court, however, federal habeas review of a parole denial is limited to the narrow question of whether a petitioner has received "fair procedures." Swarthout v. Cooke, 131 S.Ct. 859, 862 (2011). That is, a federal court may only review whether a petitioner has received a meaningful opportunity to be heard and a statement of reasons why parole was denied. Id. (federal due process satisfied where petitioners 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"). Whether the petitioner "was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied" is "the beginning and the end of the federal habeas courts' inquiry into whether [the petitioner] received due process." Id. Thus, this court may not review whether the Board correctly applied California's "some evidence" standard. Id. at 862-63.

Petitioner does not allege he was denied the opportunity to be heard at his 2009 parole suitability hearing or a statement of the reasons why parole was denied. Rather, the record reflects that petitioner was given both the opportunity to be heard and a statement of the reasons why parole was denied. See Dckt. No. 1 at 74-205 (showing petitioner was present at the hearing, allowed to speak, and represented by an attorney). This is all that due process requires. Accordingly, the court finds that petitioner's due process claim should be dismissed because it is not cognizable in federal habeas.

B. Ex Post Facto Claim

Petitioner claims the Board violated the Ex Post Facto Clause by denying him parole for three years pursuant to Marsy's Law. Dckt. No. 1 at 6, 21-25. Marsy's Law, approved by California voters in November 2008, amended California's law governing parole deferral periods. See Gilman v. Davis, 690 F. Supp.2d 1105, 1109-13 (E.D. Cal. 2010) (granting plaintiffs' motion for preliminary injunction to enjoin enforcement of Marsy's Law, to the extent it amended former California Penal Code section 3041.5(b)(2)(A)), rev'd sub nom. Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011). Prior to Marsy's Law, the Board deferred subsequent parole suitability hearings to indeterminately-sentenced inmates for one year unless the Board determined it was unreasonable to expect that parole could be granted the following year, in which case the Board could defer the subsequent parole suitability hearing for up to five years. Cal. Pen. Code § 3041.5(b)(2) (2008). Marsy's Law, which applied to petitioner at his 2009 parole suitability hearing, amended section 3041.5(b)(2) to impose a minimum deferral period of three years, and to authorize the Board's deferral of a subsequent parole hearing for up to seven, ten, or fifteen years. Id. § 3041.5(b)(3) (2010).

The Constitution provides that "No State shall . . . pass any . . . ex post facto Law." U.S. Const. art. I, § 10. A law violates the Ex Post Facto Clause of the United States Constitution if it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makes a crime's punishment greater than when the crime was committed; or (3) deprives a person of a defense available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). The Ex Post Facto Clause "is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts." Himes v. Thompson, 336 F.3d 848, 854 (9th Cir. 2003) (quoting Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). See also Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is also violated if: (1) state regulations have been applied retroactively; and (2) the new regulations have created a "sufficient risk" of increasing the punishment attached to the crimes. Himes, 336 F.3d at 854. The retroactive application of a change in state parole procedures violates ex post facto only if there exists a "significant risk" that such application will increase the punishment for the crime. See Garner v. Jones, 529 U.S. 244, 259 (2000).

Respondent contends that petitioner's ex post facto claim should be dismissed because petitioner is already a member of a class action -- Gilman v. Fisher, No. Civ. S-05-830 LKK GGH -- which addresses this issue.*fn2 Mot. at 4. As explained below, the court agrees that petitioner's ex ...


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