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Steven Adams v. D. K. Sisto


September 28, 2011


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

MEMORANDUM DECISION and ORDER [Re: Motion at Docket No. 20]

Steven Adams, a state prisoner appearing through counsel, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Adams is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered, and Adams has replied. In his Petition Adams also requests discovery. At Docket No. 20 Adams filed a request that this Court set a briefing schedule to address the recent decision of the Supreme Court in Swarthout v. Cooke. *fn1


Following a jury trial, Adams was convicted in October 1986 in the Siskiyou County Superior Court of Murder in the Second Degree (Cal. Penal Code § 187), with a use of firearm enhancement (Cal. Penal Code § 12202.5). The trial court sentenced Adams to an indeterminate prison term of 17 years to life. Adams does not challenge his conviction or sentence in this proceeding.

In May 2006 Adams made his sixth appearance before the Board of Parole Hearings ("Board"), which found him suitable for parole. In October 2006 the Governor reversed the decision of the Board. Adams filed a petition for habeas relief in Siskiyou County Superior Court, which denied his petition in a reasoned decision. The California Court of Appeal summarily denied Adams's petition for relief without opinion or citation to authority, and the California Supreme Court took similar action on February 13, 2008. Adams, appearing through counsel, timely filed his Petition in this Court on March 31, 2008.


In his Petition, Adams raises four enumerated grounds: (1) the Governor's decision is unsupport by any evidence; (2) there is no nexus between the reasons stated by the Governor and public safety; (3) denial of parole based upon the unchanging factors of the crime violates due process; and (4) the change in the law giving the Governor veto power over decisions of the Board violates the Ex Post Facto Clause. Respondent raises no affirmative defense.*fn2


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."*fn3 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."*fn4 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.*fn5 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.'"*fn6 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."*fn7 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.*fn8 "[A]bsent a specific constitutional violation, federal habeas 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.'"*fn9 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.*fn10 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn11

The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn12

In applying this standard, this Court reviews the last reasoned decision by the state court.*fn13 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn14 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn15

Under California's unique habeas procedure, a prisoner 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.*fn16

This is considered as the functional equivalent of the appeal process.*fn17 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn18 This presumption applies to state trial courts and appellate courts alike.*fn19

To the extent that Adams raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding.*fn20 A petitioner "may not, however, transform a state-law issue into a federal one merely by asserting a violation of due process."*fn21 "[The Supreme Court has] long recognized that a mere error of state law is not a denial of due process."*fn22 "[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.'"*fn23 Additionally, "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension."*fn24

A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits."*fn25 When there is no reasoned state-court decision denying an issue presented to the state, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."*fn26 "The presumption may be overcome when there is reason to think that some other explanation for the state court's decision is more likely."*fn27 Where the presumption applies, this Court must "perform an 'independent review of the record' to ascertain whether the state court decision was objectively unreasonable."*fn28 In conducting this independent review of the record, the Court presumes that the state-court decision rested on federal grounds,*fn29 giving the presumed decision the same deference as a reasoned decision.*fn30 The scope of this review is for clear error of the state-court ruling on the petition:

[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams . . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn31

"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn32


A. Request for Discovery

Adams has requested discovery of the following:

1. How many parole hearings have been held in California for persons convicted of murder since Proposition 89 took effect?

2. How many grants of parole have been rendered by the parole board for inmates convicted of murder since Proposition 89 took effect?

3. Has the Governor of California ever not reviewed a grant of parole by the parole board under Proposition 89?

4. If the answer to question 3 is yes, specifically state in which cases he has not reviewed a parole grant from the parole board and why?

5. Has the Governor of California ever reviewed a denial of parole by the parole board under Proposition 89?

6. If the answer to question 5 is yes, specifically state in which cases the Governor has done so and what actions he took?*fn33

Adams made the same discovery request in the state courts.

The rules governing habeas cases provide: "A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery."*fn34 As the Advisory Committee on the Rules has noted: "Discovery may, in appropriate cases, aid in developing facts necessary to decide whether to order an evidentiary hearing or to grant the writ following an evidentiary hearing."*fn35 Because an evidentiary hearing is necessary to consider evidence discovered through discovery, granting discovery in a case in which a petitioner would not be entitled to an evidentiary hearing would be futile.*fn36 Not only has Adams not requested an evidentiary hearing, he would not be entitled to one. Moreover, as discussed further in connection with Adams's fourth ground (ex post facto claim) in subpart IV.C., below, the evidence he seeks would not establish that Adams was entitled to relief in any event.

The Supreme Court made clear in Pinholster that "review under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."*fn37 "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings."*fn38 Indeed, "[i]f the state-court decision 'identifies the correct governing legal principle' in effect at the time, a federal court must assess whether the decision 'unreasonably applies that principle to the facts of the prisoner's case.'"*fn39 As the Supreme Court noted, "[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."*fn40 Although under Pinholster an evidentiary hearing in a federal habeas proceeding is not absolutely precluded, Pinholster also made clear that the discretion to grant a request for an evidentiary hearing is cabined by § 2254(e)(2),*fn41

which provides:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-

(A) the claim relies on-

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Adams's request in this case does not meet that standard. In this case, Adams did not request an evidentiary hearing in the state courts. Thus, it cannot be said on the record that the state courts precluded him from developing the factual basis for his claim.*fn42 Adams's request for discovery will be denied.

B. Request for Supplemental Briefing

At Docket No. 20 Adams has requested supplemental briefing to brief the impact of the Supreme Court decision in Cooke, decided after briefing in this case was completed. 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.*fn43

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 with care what it meant by the applicable procedures. Thus, this Court may no longer consider how California courts applied California laws concerning parole standards and procedures set by the state.*fn44 Under these circumstances further briefing would not aid the Court in reaching a decision. Accordingly, Adams's request for a briefing schedule at Docket No. 20 will be denied.

C. Merits

Ground 1: Insufficiency of the Evidence; Ground 2: Lack of Nexus Between Cited Factors and Public Safety Although stated as separate grounds, Adams's first and second ground are essentially the same, i.e., the evidence is insufficient to support the Governor's action. The Siskiyou County Superior Court rejected Adams's arguments, holding:

A review of the record submitted in support of the petition leads the court to conclude that the governor's decision is supported by "some evidence" (the standard articulated in Rosencrantz (sic) and other cases) in support of the governor's belief that petitioner's release would pose an unreasonable risk of danger to society.*fn45

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.*fn46 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.*fn47 Because the only federal right at issue in this case is procedural, the relevant inquiry is whether Adams received due process.*fn48 The Constitution only requires that a prisoner be allowed an opportunity to be heard and be provided with a statement of the reasons why his or her parole is denied, nothing more.*fn49 Adams's argument vis-a-vis the sufficiency of the evidence is based upon the requirements of California law.*fn50 "[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."*fn51 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.*fn52 "'Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.'"*fn53

This Court has considered Adams's other arguments, e.g., the failure of the Siskiyou Superior Court to timely rule on his petition to that court and the failure of the California Courts to specifically address each of his grounds, and finds them to be without merit. These arguments are either based upon state law or are not cognizable in a federal habeas proceeding. Adams has failed to establish a wrong of constitutional dimension. Consequently, he is not entitled to relief under his first or second grounds.

Ground 3: Reliance on the Commitment Offense

Adams challenges the refusal of the Governor to affirm the Board's decision to grant him parole on the basis that the decision was based primarily, if not wholly, upon the nature of his commitment offense. Under California law, "[t]he nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole."*fn54 The Ninth Circuit has indicated that although the commitment offense provides some evidence of unsuitability for parole, "[a] continued reliance in the future on an unchanging factor, the circumstances of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the system and could result in a due process violation."*fn55 Not only has the Supreme Court never so held, but the decision in Cooke makes clear that this is strictly a question of state law, not federal due process.*fn56 Adams is not entitled to relief under his third ground.

Ground 4: Ex Post Facto Claim

Adams argues that the 1988 amendment to California Penal Code § 3041.2 adding the provision granting the Governor veto power over decisions of the Board, which became effective after Adams's conviction, violates the Ex Post Facto Clause of the Constitution. The Siskiyou County Superior Court rejected this argument, holding:

In this case the governor, acting pursuant to Penal Code § 3041.2 (Proposition 89) reversed the decision of the parole authority to grant parole to the petitioner. Citing the U.S. Constitution and the federal case of Garner v. Jones (2000) 529 U.S. 244, petitioner is urging the court to consider that the application of Proposition 89 here is Ex Post Facto for the reason that [Adams's] crime occurred before its passage. This, however, was not the holding in the California Supreme Court case of In re Rosencrantz [sic] (2002) 29 Ca1.4th 616, which, subsequent to Garner v. Jones, ruled specifically on the Ex Post Facto issue.*fn57

In Rosenkrantz, the California Supreme Court rejected an ex post facto challenge to the application of the 1988 amendment adding gubernatorial review to § 3041.2, 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.*fn58

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.*fn59 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."*fn60 Where, however, a change in the law that does nothing more than alter the method of granting parole under identical substantive standards, it does not implicate the Ex Post Facto Clause.*fn61 Likewise, the Supreme Court has found that there was no ex post facto violation where the new law allowed for higher court review of intermediate court decisions, even though the petitioner would have been entitled to a final intermediate court decision at the time he committed his crime.*fn62

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.*fn63 The Supreme Court has also noted that the possibility of immediate release is largely "theoretical" in that in many cases a prisoner's release date comes at least several years after a finding of suitability.*fn64

In this case, Adams was never granted parole under the law as it existed prior to its 1988 amendment. As the Ninth Circuit noted in rejecting an ex post facto challenge to California

Penal Code § 3041.2, "because the BPT's parole decision is not final until after the expiration of the thirty-day gubernatorial review period, it cannot be said with certainty that the BPT would have granted [Adams] parole had it possessed the final review authority."*fn65 In Johnson, the Ninth Circuit, noting that the change was in the procedure to be followed, not the standard to be applied, could not differentiate the change in the law in § 3041.2 from the change in the law in Mallett.*fn66 Garner did not undermine either the rationale or the holding in Johnson.*fn67

In Rosenkrantz, the California Supreme Court considered, extensively analyzed, and applied Mallett, Morales, Youngblood, Dobbert, and Garner in reaching its decision.*fn68 In his petition for habeas relief in the California Supreme Court, Adams argued that the majority in Rosenkrantz improperly applied Garner.*fn69 As noted above, the California Supreme Court summarily denied Adams's petition. In his Petition to this Court, Adams makes the identical argument that he made in the California courts, i.e., that the Rosenkrantz majority erred in its interpretation and application of Garner, and that this Court should accept the view of the two dissenting justices in Rosenkrantz.*fn70

Adams contends that the evidence he wishes to obtain through discovery will show that the amendment to § 3041.2 has had a substantial negative impact on California parole decisions in that 8 out of 10 inmates who have parole granted by the Board are reversed by the Governor. Adams argues that a law that results in the Governor reversing 80% of parole grants by the Board cannot be termed as either "neutral" or "procedural." The fatal flaw in Adams's argument is that the evidence he seeks to obtain and present to this Court does not provide any factual support that, as applied to him, § 3041.2 resulted in a longer period of incarceration. Even if Adams were to provide evidence sufficient to prove an anti-parole policy, he would not be eligible for habeas relief, because he has not shown he was subject to such a policy. To the contrary, the Governor's explanation for his reversal of the Board's decision demonstrates Adams received an individualized assessment of his suitability for parole. The Governor, in concluding that Adams was not suitable for parole, explained that he considered the specific nature of Adams's crime, his failure to accept full responsibility, and his lack of a residential placement or a job offer.*fn71

Based on the Governor's explanation, both the Superior Court and Court of Appeal determined that the Governor's decision to deny Adams parole was based on "some evidence." In sum, the evidence Adams seeks to discover will not show that he was denied parole on the basis of a general anti-parole or no-parole policy.

In light of Garner, Morales, Mallett, Youngblood, and Johnson, this Court cannot say that the decision of the Siskiyou County Superior 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 rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn72 Adams is not entitled to relief under his fourth ground.


Adams is not entitled to relief on any ground raised in his Petition.

IT IS THEREFORE ORDERED THAT the motion to set a briefing schedule at Docket No. 20 is DENIED.

IT IS FURTHER ORDERED THAT Petitioner's request for discovery 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.*fn73 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn74

The Clerk of the Court is to enter judgment accordingly.

James K. Singleton, Jr.

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