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Mark M. Hensley v. G. Swarthout

December 13, 2011

MARK M. HENSLEY, PETITIONER,
v.
G. SWARTHOUT, WARDEN, RESPONDENT.



ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He challenges the decision of the California Board of Parole Hearings ("Board") to deny him parole at a parole consideration hearing held on October 28, 2009. Dckt. No. 1 at 1.*fn1

Petitioner claims that the Board's 2009 decision violated his right to due process because it was not supported by some evidence of petitioner's current dangerousness and because the hearing was conducted by a "biased, non-disinterested decisionmaker." Id. at 10. Petitioner also claims that the Board's decision to defer his next parole suitability hearing for 15 years violated the Ex Post Facto Clause, the Equal Protection Clause, the Due Process Clause, and his Eighth Amendment right to be free from cruel and unusual punishment. Id. at 1, 10. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Therefore, the request will be granted. See 28 U.S.C. § 1915(a). However, for the reasons explained below, the court finds that petitioner's application for a writ of habeas corpus must be dismissed. See Rule 4, Rules Governing § 2254 Cases (requiring summary dismissal of habeas petition if, upon initial review by a judge, it plainly appears "that the petitioner is not entitled to relief in the district court").

I. Due Process Claim

Petitioner alleges that the Board's 2009 decision violated his right to due process because the hearing was unfair, the Board's reasons for finding him unsuitable for parole were "wholly inadequate," and the "decisionmaker" was not "disinterested." Dckt. No. 1 at 34-50. The court will evaluate these claims below.

The gist of petitioner's claims is that there was insufficient evidence to support the Board's conclusion that he posed a current danger to society if released from prison. 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, 526 U.S. __, ___, 131 S.Ct. 859, 862 (2011). Thus, 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"). This court may not review whether the Board correctly applied California's "some evidence" standard. Id. at 861.

Petitioner does not allege that he was not afforded constitutionally adequate process as defined in Swarthout -- that is, that he was denied a meaningful opportunity to be heard or a statement of reasons why the Board denied him parole. Rather, it is clear from the allegations in the petition that petitioner was given the opportunity to be heard at his 2009 parole suitability hearing and received a statement of the reasons why parole was denied. See Dckt. No. 1 at 10-29 (petitioner's summary of the 2009 parole suitability hearing, which reflects both petitioner's participation in the hearing and the Board's stated reasons for denying parole). This is all that due process requires. Swarthout, 131 S.Ct. at 862-63. Accordingly, petitioner is not entitled to relief on this claim.

Petitioner also claims that his parole hearing was conducted by a biased, "non-disinterested" decisionmaker. Dckt. No. 1 at 10-29. He argues that the Board, "when acting in their quasi-judicial capacity, must remain a 'neutral and detached' hearing body." Id. at 35. He contends that the Board members improperly acted as "interrogator and judge" because they "cross-examined" him at the hearing and "deprived him of his liberty interest because they did not personally like the answers he gave." Id. at 36. Petitioner also complains that the Board allowed the DA to "retry" him through questions at the hearing and "denied him parole because they did not personally like the way he answered the DA questions." Id. He argues that there was no connection between the facts discussed at the hearing and the Board's unfavorable suitability decision. Id. Petitioner explains that the reasons given by the Board for its decision were not supported by the record. Id. at 38-50. He states, without elaboration, that the Board harbored "personal biases and predispositions." Id. at 42.

To the extent petitioner is challenging the Board's 2009 decision on the basis that there was insufficient evidence presented at the hearing to demonstrate he posed a current danger to society, he is not entitled to relief for the reasons stated above.

It is true that California inmates have a due process right to parole consideration by neutral decision-makers. See O'Bremski v. Maass, 915 F.2d 418, 422 (9th Cir. 1990) (an inmate is "entitled to have his release date considered by a Board that [is] free from bias or prejudice"). Accordingly, parole board officials owe a duty to potential parolees "to render impartial decisions in cases and controversies that excite strong feelings because the litigant's liberty is at stake." Id. (quoting Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981)). Indeed, "a fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). Petitioner is therefore correct that he was entitled to have his parole release date considered by a Board that was free of bias or prejudice. However, petitioner's allegations fall far short of demonstrating that the Board in general, or any individual member of the Board, was biased against him at the time of his parole hearing in 2009. The fact that the Board questioned him about the crime and allowed the District Attorney to ask questions does not, without more, demonstrate bias. Nor does the fact that the Board was dissatisfied with his answers to these questions. Petitioner has failed to state a cognizable claim that the Board was not impartial. Accordingly, that claim will be dismissed.

II. Ex Post Facto Claim

Petitioner also claims the Board violated the Ex Post Facto Clause by denying him parole for fifteen years pursuant to Marsy's Law. Dckt. No. 1 at 51. As discussed below, the court finds this 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

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, ...


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