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Edward Lee Bowman v. G. Swarthout

May 10, 2012

EDWARD LEE BOWMAN, PETITIONER,
v.
G. SWARTHOUT, FINDINGS AND RECOMMENDATIONS RESPONDENT.



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2010 decision of the California Board of Parole Hearings ("Board) finding him unsuitable for release on parole as a violation of both his right to due process and of his plea agreement. Before the court is respondent's motion to dismiss the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Petitioner has filed an opposition to the motion.

BACKGROUND

On November 4, 1988, petitioner appeared before the Santa Cruz County Superior Court with counsel and plead guilty to first degree murder in violation of California Penal Code § 187. (Doc. No. 1-1 at 2.) Petitioner was thereafter sentenced to state prison term of 25-years to life. (Id.)

On February 8, 2010, the Board held a subsequent parole consideration hearing at California State Prison - Solano. (Doc. No. 1-1 at 33 & 35.) The Board determined that petitioner was not suitable for parole because he posed an unreasonable risk of danger if released from prison, that he had difficulty with insight and credibility, and that the murder to which he had pled guilty was committed in an "especially heinous, atrocious, and cruel manner." (Doc. No. 1-1 at 171-72 & 175.)

In his pending habeas petition, petitioner claims two grounds upon which he is entitled to federal habeas relief: (1) petitioner has a liberty interest in parole and the denial of parole violates his right to due process under the Fourteenth Amendment, and (2) the plea agreement he entered was an "executory contract" and his reasonable expectation based on that contract was that if "he maintained good behavior and participated in rehabilitative efforts he would be released before serving an actual twenty-five years[.]" (Doc. No. 1 at 7.) According to petitioner, he has now been incarcerated "in excess of the twenty-five years[.]" (Id.)

THE PARTIES' ARGUMENTS

I. Respondent's Motion

Respondent argues that petitioner has no due process right to be released on parole and that his only procedural due process rights in the parole context are the right to be heard and the right to a statement of the reasons for the parole decision. (Doc. No. 14 at 2.) Respondent asserts that because petitioner received the process due in connection with his parole proceedings, this claim must be dismissed as non-cognizable.

As to petitioner's second claim, respondent argues that there is no evidence that prison officials violated the terms of petitioner's plea agreement. (Id.) According to respondent, petitioner is serving an indeterminate sentence which is a life sentence unless he is found to be suitable for parole. (Id. at 3.) Petitioner has received regular parole suitability hearings but was found to be unsuitable for parole in 2010. (Id.) Respondent argues that petitioner has failed to produce any evidence that his plea agreement required his release from prison in 2010. (Id.)

Finally, respondent contends that this breach of the plea agreement claim should be dismissed because it is based on conclusory and unsupported allegations that petitioner's plea agreement requires his release from prison by a certain date. (Id.)

II. Petitioner's Opposition

Petitioner argues that based on Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979) and the mandatory language pertaining to California's parole system, he has a constitutional right to release from prison on parole. (Doc. No. 15 at 2-4.) Since California Penal Code § 3041(a) provides that the Board "shall normally set a parole release date[,]" petitioner questions why less than 4% of California's life-term inmates are being paroled. (Id. at 5.)

As to his breach of contract claim, petitioner asserts that when he entered the plea agreement, he expected to be released on parole before serving twenty-five years in state prison with good conduct and work credits. (Id.) According to petitioner, this "subjective understanding of the plea agreement must be the controlling factor." (Id. at 6.) Finally, petitioner argues that "the government has no business to, at this point of the agreement/contract to contest petitioner's suitability for parole in accord with the terms of the contract they drafted." (Id.)

ANALYSIS

I. Rule 4 of the Rules Governing ...


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