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Kirk Franklin v. Gary Swarthout

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 31, 2012

KIRK FRANKLIN,
PETITIONER,
v.
GARY SWARTHOUT, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Dean D. Pregerson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" and exhibits on October 4, 2011. The Petition challenges a 2009 decision of the California Board of Prison Terms ("Board") deeming Petitioner unsuitable for parole and the state courts' subsequent denials of habeas relief in connection with that decision.*fn1 Respondent filed an Answer and lodged supporting documents ("Respondent's Lodgments") on November 30, 2011. Petitioner filed a Traverse on December 23, 2011.

BACKGROUND

In 1982, a jury found Petitioner guilty of first degree murder, robbery, burglary, and grand theft auto for events surrounding the killing of Harold Williams (Petition, p. 2; State. Pet. Ex. A (Abstract of Judgment)). The trial court sentenced Petitioner to 25 years to life in prison (Petition, p. 2; State Pet. Ex. A). On April 30, 2009, Petitioner appeared before the Board for a fifth subsequent parole suitability hearing (State Pet. Ex. C). The Board denied parole for three years (State Pet. Ex. C, pp. C100, C109).

Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a reasoned decision on November 23, 2009 (Pet. Ex. A; Respondent's Lodgments 1-2). Petitioner then filed a habeas corpus petition in the California Court of Appeal, which that court denied on July 29, 2010, with citations to In re Lawrence, 44 Cal. 4th 1181, 82 Cal. Rptr. 3d 169, 190 P. 3d 535 (2008) and In re Shaputis, 44 Cal. 4th 1241, 82 Cal. Rptr. 3d 213, 190 P.3d 573 (2008) (Pet. Ex. B; Respondent's Lodgments 3-4).*fn2 Petitioner filed a petition for review in the California Supreme Court, which that court denied summarily on August 31, 2011 (Pet. Ex. C; Respondent's Lodgments 5-6).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The Board's decision denying Petitioner parole suitability allegedly is not supported by sufficient evidence (Ground One);

2. The Board's decision to deny suitability allegedly converts Petitioner's indeterminate sentence into a sentence of life without the possibility of parole, which assertedly is unfair, disproportionate, amounts to cruel and unusual punishment, and denies Petitioner equal protection (Ground Two); and

3. The application of Marsy's Law (Proposition 9) to Petitioner's parole consideration allegedly violates the Ex Post Facto Clause (Ground Three).

THE BOARD'S HEARING AND DECISION

At the April 2009 hearing, Petitioner testified and offered evidence in support of his alleged suitability for parole (State Pet. Ex. C, pp. C24-C84). The Board incorporated by reference the facts from the commitment offenses as included in the Probation Officer's Report (State Pet. Ex. C, p. C25), which provides:

In the late evening hours of December 6, 1981, the victim, Harold A. Williams, was visited at his residence by [Petitioner's brother], Roy Franklin. Apparently both were homosexuals and involved in the act of homosexuality when [another of Petitioner's brothers] Ben Franklin, and [Petitioner] entered the victim's residence. They proceeded into the bedroom, at which time it is alleged that Ben Franklin pulled out a handgun, pointed it at the rear portion of the victim's head, and shot the victim once in the back of the head. Allegedly, all three then wrapped the victim up in the bedding material, took him into the back yard, [and] placed him in a pond. . . . They dumped him in the pond, covered him with debris, and then went back into the house. They then allegedly ransacked the house and took a camera, a key set, and several items of men's jewelry. They then set fire to the house and the house was completely gutted. While the fire was in progress, they [] stole the victim's vehicle.

(State Pet. Ex. B, pp. B9-B10).

Petitioner testified that he went with his two brothers to the house of the victim on the night of the murder and was at the house when the shooting occurred, but claimed he was not armed and was not in the room where Williams was shot (State Pet. Ex. C, pp. C27-C30). Petitioner acknowledged that at one time he had said he heard gunfire, but testified that he could not hear the gunshot because the house was soundproofed (State Pet. Ex. C, p. C31). Petitioner said it was his brother Roy who shot Williams (State Pet. Ex. C, pp. C29-C30). Later, Petitioner testified that he did not know which of his brothers shot Williams (State Pet. Ex. C, p. C47).*fn3

The Board ultimately deemed Petitioner not suitable for parole, finding that Petitioner would pose an unreasonable risk of danger to society if released, based on Petitioner's:

(1) understanding of the nature and magnitude of the commitment offenses and of Petitioner's prior and subsequent offenses, an understanding which the Board believed minimized Petitioner's involvement in the crimes;*fn4

(2) violent criminal history involving a purse snatching; and

(3) status as having been on parole at the time of the commitment offense (State Pet. Ex. C, pp. C100-C109, C112). After describing the offense, the Board contrasted Petitioner's current testimony:

Today you had a very different story to tell. You said that your brother Roy came with this story that he had been sexual [sic] abused by this man. That your brother Ben and you then subsequently went over to this man's house. He answers the door and you had Roy go first so that he would answer the door and open it, which he did. The two of them went inside and subsequently you and your brother Ben entered. Now you claim today -- you said today, well, you stayed out in the living room or anteroom and drank a beer and you heard nothing. So much of this, sir, is just not credible. It's not credible that you were in a house even with insulation, which would completely block the noise of a pistol being shot in the house. There are very few places even with a door shut where, if you fired a pistol at the end of the house, even with all the doors and even with insulation that you couldn't hear that noise, so that's just very hard to believe. . . . But one of the most disturbing things is that there is another version that was told by you, and we had to look at that version and say, whoa, if what you said today is true, why didn't you tell that story to police because it would be -- it's exculpatory. It would actually relieve you from some of in your mind, of the burden of this crime, which is why the District Attorney is saying you're minimizing this crime still because you didn't go to the police, or when caught by the police, you didn't say my brothers made me do this. I didn't realize this was going to happen. I'm 18 years old and good grief, and here this guy is dead, and they made me help them, and we had to put the body -- you didn't do any of that.

You don't see yourself apparently in a bad light, and we're not trying to put you in a bad light, but we're trying to ask you to look at the reality of these situations and face the reality, as it exists. And until we have. . . feedback from you that makes sense, then we feel that you still don't understand the nature and magnitude of the crime.

(State Pet. Ex. C, pp. C101-C102, C112).*fn5

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000). This standard of review is "highly deferential" and "difficult to meet." Harrington v. Richter, 131 S. Ct. 770, 786 (2011); Woodford v. Visciotti, 537 U.S. at 24. "The petitioner carries the burden of proof." Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005).

In applying these standards, the Court looks to the last reasoned state court decision. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir.), cert. denied, 130 S. Ct. 183 (2009).*fn6 Where there exists only a summary denial, "a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. at 786; see also Cullen v. Pinholster, 131 S. Ct. at 1403 (quoting same). This is "the only question that matters under § 2254(d)(1)." Harrington v. Richter, 131 S. Ct. at 786 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("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.").

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION*fn7

I. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Board's Parole Decision Does Not Merit Habeas Relief.

In Ground One, Petitioner contends that the Board's decision finding Petitioner unsuitable for parole denied Petitioner due process because the decision allegedly is not supported by evidence "of his real and credible threat or danger to society" (Petition, p. 3(a)). As explained below, the United States Supreme Court's decision in Swarthout v. Cooke, 131 S. Ct. 859 (2011) ("Swarthout") precludes granting federal habeas relief on this claim.

"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) ("Greenholtz"). In some instances, however, state statutes may create liberty interests in parole release entitled to protection under the federal Due Process Clause. See Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Greenholtz, 442 U.S. at 12. The Ninth Circuit has held that California's statutory provisions governing parole create such a liberty interest. See Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010) (en banc), disapproved on other grounds, Swarthout v. Cooke, 131 S. Ct. 859 (2011).*fn8

"In the context of parole, . . . the procedures required are minimal." Swarthout v. Cooke, 131 S. Ct. at 862. Due process requires that the State furnish a parole applicant with an opportunity to be heard and a statement of reasons for a denial of parole. Greenholtz, 442 U.S. at 16. "The Constitution does not require more." Id.; accord Swarthout v. Cooke, 131 S. Ct. at 862 (citation omitted); see also Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011) ("there is no substantive due process right created by the California's parole scheme"). Petitioner does not contend, and the record does not show, that Petitioner was denied these required procedural safeguards. See State Pet. Ex. C (transcript of April 2009 hearing and Board's decision).*fn9

The California Supreme Court has held, as a matter of state law, that "some evidence" must exist to support a parole denial. See In re Lawrence, 44 Cal. 4th at 1212. In Swarthout v. Cooke, however, the United States Supreme Court rejected the contention that the federal Due Process Clause contains a guarantee of evidentiary sufficiency with respect to a parole determination. Swarthout v. Cooke, 131 S. Ct. at 862 ("No opinion of ours supports converting California's 'some evidence' rule into a substantive federal requirement."). The Swarthout Court expressly disapproved Ninth Circuit cases to the contrary, including Hayward v. Marshall, 603 F.3d at 559-61. See Swarthout v. Cooke, 131 S. Ct. at 862-63. Petitioner's claim that the Board's decision is not supported by sufficient evidence fails to demonstrate that Petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37; see also Swarthout v. Cooke, 131 S. Ct. at 863 ("finding that there was no evidence in the record supporting parole denial is irrelevant unless there is a federal right at stake") (emphasis original).

For the same reasons, Petitioner's additional contention that the Board should have weighed the suitability/unsuitability factors differently (Petition, pp. 4(c)-4(g), 4(h)(1)-4(h)(7)), does not state a basis for federal habeas relief. Swarthout v. Cooke, 131 S. Ct. at 863 ("Because the only federal right at issue is procedural, the relevant inquiry is what process [petitioners] received, not whether the state court decided the case correctly.").*fn10

For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground One.

II. Petitioner's Claim that the Board's Decision Allegedly Converted Petitioner's Indeterminate Sentence Into a Sentence of Life Without the Possibility of Parole Does Not Merit Habeas Relief.

In Ground Two, Petitioner argues that the Board's parole denial improperly converted Petitioner's sentence of life with the possibility of parole into a sentence of life without the possibility of parole (Petition, pp. 4(j), 4(m)-4(q), 4(z)). Petitioner appears to argue that the Board's finding that the offenses were "atrocious" and "committed in a dispassionate manner" somehow amounted to a special circumstance finding under California Penal Code section 190.2(a)(14) (Traverse, pp. A"4", A"10"-A"13").*fn11 Contrary to Petitioner's argument, the Board's decision did not alter Petitioner's indeterminate sentence.

In finding Petitioner unsuitable for parole, the Board relied on state prison regulations that describe various circumstances tending to show unsuitability for release. See Cal. Code Regs., tit. 15, §2402(c). Such circumstances include:

(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: . . . (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. (C) The victim was abused, defiled or mutilated during or after the offense.

Cal. Code Regs., tit. 15, § 2402(c) (emphasis added). As summarized above, the Board believed Petitioner was unsuitable for parole based in part on the circumstances of the commitment offense, which the Board described as "atrocious," having been committed in a dispassionate manner, and having involved abuse of the victim after the offense (State Pet. Ex. C, pp. C100-C101).

The Board did not make a section 190.2 "special circumstance" finding, or otherwise convert Petitioner's sentence into a sentence of life without the possibility of parole. As Petitioner acknowledges in Ground Three (discussed below), the Board simply denied parole eligibility for three years. See State Pet. Ex. C, pp. C109, C113; Petition, p. 5(i) (Petitioner arguing that the Board's three-year denial violated his rights). Such a denial does not effectively transform the sentence to life without the possibility of parole.

See, e.g., Guardado v. Neotti, 2011 WL 7043813, at *7 (S.D. Cal. Nov. 4, 2011), adopted, 2012 WL 124411 (S.D. Cal. Jan. 17, 2012) (fact that prisoner remains eligible for parole means prisoner is not serving a term of life without possibility of parole); Karr v. Sisto, 2010 WL 1135873, at *14 (E.D. Cal. Mar. 22, 2010), supplemented, 2010 WL 2025327 (E.D. Cal. May 18, 2010), aff'd, 430 Fed. App'x 614 (9th Cir. May 3, 2011) ("While Petitioner [serving an indeterminate term] might have had a subjective expectation that he would be released from prison sooner, the Board's decision to deny him a parole release date because he presents an unreasonable risk of danger to society has not enhanced or otherwise 'converted' petitioner's punishment.").*fn12

Petitioner claims that the Board's denial of parole renders his indeterminate sentence disproportionate to the crime he committed and assertedly amounts cruel and unusual punishment in violation of the Eighth Amendment (Petition, pp. 4(n)-4(p)). The Eighth Amendment contains a "narrow proportionality principle" that "forbids only extreme sentences that are 'grossly disproportionate' to the crime." Graham v. Florida, 130 S. Ct. 2011, 2021 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)); see also United States v. Williams, 636 F.3d 1229, 1232-33 (9th Cir.), cert. denied, 132 S. Ct. 188 (2011) (discussing same). "The threshold determination in the eighth amendment proportionality analysis is whether [Petitioner's] sentence was one of the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." United States v. Bland, 961 F.2d 123, 129 (9th Cir.), cert. denied, 506 U.S. 858 (1992) (citations and quotations omitted); see also Graham v. Florida, 130 S. Ct. at 2022 (discussing same); Lockyer v. Andrade, 538 U.S. at 73 (gross proportionality principle "applicable only in the 'exceedingly rare' and 'extreme' case"; citations omitted). Where the crime is murder, even a life sentence without parole is not grossly disproportionate. See Harris v. Wright, 93 F.3d 581, 583--585 (9th Cir. 1996); United States v. LaFleur, 971 F.2d 200, 211 (9th Cir. 1991), cert. denied, 507 U.S. 924 (1993) ("Under Harmelin, it is clear that a mandatory life sentence for murder does not constitute cruel and unusual punishment."); Tran v. Felker, 2008 WL 1805820, at *31-32 (E.D. Cal. Apr. 22, 2008) (sentence of life without parole plus twenty-five years to life for driver in drive-by shooting murder committed for benefit of criminal street gang not unconstitutional, although petitioner did not personally use a gun); see also Harmelin v. Michigan, 501 U.S. at 1009 (upholding a sentence of life imprisonment with no possibility of parole for a first offense crime of possession of 672 grams of cocaine as not being disproportionate). It follows that Petitioner's indeterminate 25-to-life sentence for murder is not grossly disproportionate.

Petitioner's invocation of the matrix of base terms set forth in the California Code of Regulations and principles of proportionality or uniformity (Petition, pp. 4(p)-4(q)) does not alter the Court's conclusion. The Board is not required to consider the matrix, or principles of proportionality or uniformity, until after the Board deems an inmate suitable for parole. See Cal. Code Regs., tit. 15, § 2282(a); In re Dannenberg, 34 Cal. 4th 1061, 1091-94, 23 Cal. Rptr. 3d 417, cert. denied, 546 U.S. 844 (2005), abrogated in part, In re Lawrence, 44 Cal. 4th at 1205-06; see also Sass v. Calif. Bd. of Prison Terms, 461 F.3d 1123, 1132 (9th Cir. 2006), overruled in part on other grounds, Hayward v. Marshall, 603 F.3d at 555 ("The matrix is intended to ensure sentencing uniformity among those who commit similar crimes. [citation]. Such considerations are, of course, inapplicable in the case of prisoners deemed unsuitable for parole. [citation]."); Ramos v. Kane, 2007 WL 1232052, at *4 (N.D. Cal. Apr. 26, 2007) ("going straight to the matrix to calculate the sentence puts the cart before the horse because it ignores critical language in the relevant statute and regulations that requires the prisoner first to be found suitable for parole"). Because the Board did not find Petitioner suitable for parole, the Board was not required to use the matrix, or principles of proportionality or uniformity, to determine a base term. See, e.g., Ramos v. Kane, 2007 WL 1232052, at *4; Wilder v. Dickinson, 2011 WL 1131491, at *4 (C.D. Cal. Feb. 10, 2011), adopted, 2011 WL 1118954 (C.D. Cal. Mar. 22, 2011); Smith v. Finn, 2007 WL 214597, at *8 (E.D. Cal. Jan. 25, 2007), adopted, 2007 WL 3151673 (E.D. Cal. Oct. 26, 2007); Fernandez v. Kane, 2006 WL 3041083, at *5, *9 (N.D. Cal. Oct. 24, 2006).*fn13

Similarly, Petitioner's invocation of principles discussed in Apprendi v. New Jersey, 530 U.S. 466 (2000) ("Apprendi"), Blakely v. Washington, 542 U.S. 296 (2004) ("Blakely"), and Cunningham v. California, 549 U.S. 270 (2007) ("Cunningham") (Petition, pp. 5(b)-5(g); Traverse, pp. A"8"-A"9", A"12"-A"13") cannot change the result herein. Apprendi, Blakely and Cunningham have no application in the present case.

In Apprendi, the United States Supreme Court held that, regardless of its label as a "sentencing factor," any fact other than the fact of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be "proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Blakely, the Supreme 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 (original emphasis). In Cunningham, the Supreme Court held that a California judge's imposition of an upper term sentence based on facts found by the judge rather than the jury violated the Constitution. Cunningham, 549 U.S. at 293-94.

The rule set forth in Apprendi, Blakely and Cunningham, requiring a jury determination of facts increasing a sentence beyond the statutory maximum, is based on the Sixth Amendment's jury trial guarantee and the requirement of proof beyond a reasonable doubt contained in the Due Process Clause. See Apprendi, 530 U.S. at 476-77; see also Cunningham, 548 U.S. at 281; Shepard v. United States, 544 U.S. 13, 24 (2005); Blakely, 542 U.S. at 305. At his parole hearing, Petitioner enjoyed no constitutional right to jury trial or to proof beyond a reasonable doubt. See United States v. Knights, 534 U.S. 112, 120 (2001) ("trial rights of a jury and proof beyond a reasonable doubt" inapplicable in probation revocation proceedings); United States v. Huerta-Pimentel, 445 F.3d 1220, 1225 (9th Cir.), cert. denied, 549 U.S. 1014 (2006) ("Nor does a judge's finding, by a preponderance of the evidence, that defendant violated the conditions of supervised release raise Sixth Amendment concerns. There is no right to jury trial in such post-conviction determinations. [citations].").

Furthermore, the Blakely Court explained that the Apprendi rationale does not apply to indeterminate sentencing within the permitted sentencing range. See Blakely, 542 U.S. at 309 ("Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence - and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.") (original emphasis); Rush v. Kane, 2007 WL 4166032, at *7 (N.D. Cal. Nov. 19, 2007).

Finally, the Apprendi line of cases is inapplicable here because, as discussed above, in denying parole the Board did not increase Petitioner's sentence beyond the statutory maximum. The sentencing court imposed a 25 years-to-life term, as authorized by statute. See Cal. Penal Code §§ 187, 190(a). The Board did not enhance Petitioner's sentence beyond that statutory maximum. Hence, Apprendi, Blakely and Cunningham have no application herein. See Duesler v. Woodford, 269 Fed. App'x 670, at *1 (9th Cir. Mar. 10, 2008) (Board's denial of parole did not violate Apprendi and Blakely "because the Board did not increase Duesler's sentence beyond the statutory maximum of life imprisonment for his crime of second degree murder");*fn14 Grewal v. Mendoza-Powers, 2008 WL 1734700, at *8 (E.D. Cal. Apr. 11, 2008), adopted, 2008 WL 3470234 (E.D. Cal. Aug. 12, 2008) (when maximum sentence is "to life," "the parole board's decision does not increase the maximum penalty. Apprendi and Blakely do not apply"); Cabales v. Ayers, 2007 WL 1593869, at *7 (N.D. Cal. June 1, 2007) ("Cabales' sentence is 15-to-life, and the [Board] has not used the fact that he shot at and hit several people to extend his sentence beyond the life maximum to which he was sentenced. Apprendi is not implicated by the [Board's] use of the information about the particulars of the crime."); Clifford v. Kane, 2007 WL 1031148, at *7 (N.D. Cal. Apr. 3, 2007) ("No case in the Apprendi line has considered the requirements for parole determinations. Therefore, petitioner's proposed application of Apprendi and its progeny to parole hearings is not 'clearly established Federal law, as determined by the Supreme Court of the United States' and thus cannot be a basis to grant him habeas relief.") (citation omitted); Jameson v. Woodford, 2007 WL 963275, at *10 (E.D. Cal., Mar. 29, 2007), adopted, 2007 WL 1574580 (E.D. Cal. May 30, 2007) (Apprendi and Blakely inapplicable, because "[t]he parole board's decision did not increase Petitioner's sentence beyond the maximum").

For the foregoing reasons, Petitioner has not shown that the state courts' rejection of Petitioner's claims was contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Accordingly, Petitioner is not entitled to habeas relief on Ground Two.

III. Petitioner's Claim that the Application of Marsy's Law to Petitioner's Parole Consideration Violates the Ex Post Facto Clause Does Not Merit Habeas Relief.

In Ground Three, Petitioner contends that the application of "Marsy's Law" (Proposition 9) to Petitioner violates the Ex Post Facto Clause (Petition, pp. 5(h)-5(l); Traverse, pp. A"14"-A"26"). Prior to Marsy's Law, when the Board would deem an inmate serving a life sentence for murder unsuitable for parole, the Board would conduct a subsequent parole hearing one year later, except the Board could defer the subsequent hearing up to five years if the Board found that it was not reasonable to expect that parole would be granted sooner. See former Cal. Penal Code § 3041.5(b)(2). Marsy's Law increased the maximum deferral period to fifteen years and also provided for a presumptive deferral period of ten years unless the Board "finds by clear and convincing evidence that the [statutory] criteria relevant to the setting of parole release dates . . . are such that consideration of the public and victim's safety do not require a more lengthy period of incarceration . . . ." See Cal. Penal Code § 3041.5(b)(3)(B). In such case, the Board has discretion to set a three-, five-, or seven-year deferral period. Id. As previously indicated, the Board imposed the new minimum three-year deferral period for Petitioner (State Pet. Ex. C., pp. C100, C109).*fn15

The retroactive application of a change in state parole procedures violates the Ex Post Facto Clause 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). Retroactive application of the 2008 amendment to section 3041.5 (Marsy's Law) entails no such "significant risk." In Gilman v. Schwarzenegger, 638 F.3d 1101, 1109-11 (9th Cir. 2010) ("Gilman"), the Ninth Circuit reversed an injunction against the retroactive application of the 2008 amendment, finding that an ex post facto challenge to the amendment was unlikely to succeed. The Ninth Circuit reasoned that, because the amendment gives the Board discretion to advance parole suitability hearings whenever circumstances warrant, the amendment does not create a "significant risk" of prolonging prisoners' incarceration. Id.; see also Cal. Penal Code § 3041.5(b)(4), (d)(1) (providing that the Board may advance a hearing date upon an inmate's request). The same reasoning applies in the present case. See Lucero v. Wong, 2011 WL 5834963, at *3-4 (N.D. Cal. Nov. 21, 2011) (following Gilman in denying ex post facto claim); Woods v. Gonzalez, 2011 WL 4831191, at *3-4 (N.D. Cal. Oct. 12, 2011) (same); Petrich v. Marshall, 2011 WL 322001, at *10 (C.D. Cal. Jan. 27, 2011). Although the Board denied Petitioner's parole suitability for three years, the Board retains the discretion to advance Petitioner's next parole suitability hearing whenever circumstances warrant. Thus, application of the challenged amendment to Petitioner does not create a "significant risk" of prolonging Petitioner's actual incarceration. Accordingly, Petitioner's ex post facto claim fails. See Gilman, 638 F.3d at 1110; see also Garner v. Jones, 529 U.S. at 259.

Additionally, because Petitioner appears to be a member of the Gilman class raising the same issue with Marsy's Law,*fn16 it appears that Petitioner's interests will be represented in that action. For this reason, Petitioner's ex post facto claim should be dismissed without prejudice. See Gwinn v. Swarthout, 2011 WL 6704390, at *3-4 (E.D. Cal. Dec. 21, 2011) (recommending that petitioner's ex post facto challenge to Proposition 9 be dismissed in light of ongoing Gilman litigation, given petitioner's putative membership in Gilman class); Rivers v. Swarthout, 2011 WL 6293756, at *2-3 (E.D. Cal. Dec. 13, 2011) (same); Hall v. Martel, 2011 WL 7005465, at *8 n.3 (C.D. Cal. Dec. 7, 2011), adopted, 2012 WL 94331 (C.D. Cal. Jan. 9, 2012) (same but recommending dismissal without prejudice); Campbell v. Ochoa, 2011 WL 5436233, at *7 n.3 (C.D. Cal. Oct. 3, 2011), adopted, 2011 WL 5515486 (C.D. Cal. Nov. 9, 2011) (same); Lathan v. Swarthout, 2011 WL 4345826, at *3-4 (E.D. Cal. Sept. 15, 2011) (same); Curtis v. Dickinson, 2011 WL 2883253, at *3-5 (C.D. Cal. June 9, 2011), adopted, 2011 WL 2883153 (C.D. Cal. July 19, 2011) (same).

The state courts' rejection of Petitioner's ex post facto claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Petitioner is not entitled to relief on Ground Three.

RECOMMENDATION*fn17

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order:

(1) accepting and adopting this Report and Recommendation;

(2) denying and dismissing Grounds One and Two of the Petition with prejudice; and (3) denying and dismissing Ground Three of the Petition without prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.


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