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Lawrence Remsen v. J. Holland

August 7, 2012

LAWRENCE REMSEN,
PETITIONER,
v.
J. HOLLAND, (A) WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 5) ORDER DISMISSING SOME CLAIMS IN ) THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1) ORDER GRANTING PETITIONER LEAVE TO FILE NO LATER THAN THIRTY (30) DAYS AFTER SERVICE A FIRST AMENDED PETITION WITH RESPECT TO PETITIONER'S EX POST FACTO CLAIMS DEADLINE FOR FILING FIRST AMENDED PETITION: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 17, 2012 (doc. 4). Pending before the Court is the petition, which was filed on May 7, 2012.

I. Discharge of the Order to Show Cause On May 24, 2012, Petitioner responded to this Court's order to show cause why the petition should not be dismissed for failure to exhaust state court remedies. Petitioner did not provide the Court with copies of the full petition or petitions filed in the California Supreme Court. Therefore, it is not clear that Petitioner exhausted all state remedies. However, the Court will proceed to screen the petition to the extent possible at this juncture and will discharge the order to show cause.

II. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

III. Background

Here, Petitioner alleges that he is an inmate of the California Correctional Institution at Tehachapi (CCI) serving a sentence of fifteen years to life *fn1 plus five years imposed in 1983 in the Los Angeles County Superior Court for second degree murder and multiple counts of forgery and theft in violation of Cal. Pen. Code §§ 187, 470, and 487. (Pet. 1, 8.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on March 19, 2008, finding Petitioner unsuitable for parole.

Although Petitioner lists only four grounds in the form portion of the petition (doc. 1, 5-6), a review of the entirety of the petition shows that Petitioner appears to raise additional claims or sub-claims. The claims that appear to be raised in the petition are as follows: 1) the finding that Petitioner was unsuitable for parole because he presented an unreasonable risk to the public safety was a violation of Petitioner's rights to substantive due process and equal protection guaranteed by the Fourteenth Amendment because it was unsupported by the evidence;

2) Petitioner was denied a fair and impartial hearing because the BPH failed to recognize its statutory limitations and was not impartial; 3) the failure to release Petitioner on parole violated Petitioner's right to due process and equal protection because when sentenced he was told that he could not serve more than fifteen years; 4) the determination of the length of Petitioner's sentence by the BPH exceeds the BPH's authority because it is a legislative function, and it results in an absence of uniformity of sentence and a violation of Petitioner's right under state law to have his sentence set on the basis of proportionality of the offense and earned credits; 5) the failure to provide annual parole hearings as was done when Petitioner was convicted is an incorrect interpretation or application of state law; 6) changing the parole rules after Petitioner's conviction (e.g., unspecified differences in standards, greater time periods between parole hearings, and deprivation of the right to a jury trial on dangerousness) violated the prohibition against ex post facto laws under the Constitution and the state constitution; 7) the application of Cal. Pen. Code § 3041 to Petitioner violates Petitioner's right to substantive due process and equal protection because Petitioner is not serving a life sentence under state law; 8) Petitioner's right of contract and right to a reduction of his sentence were denied when his agreement with the state pursuant to Cal. Pen. Code § 2931 was violated; 9) under the state laws enacted in 1977, the BPH was without the authority to enact or apply to Petitioner rules and regulations concerning release on parole other than to credit Petitioner's earned good time credits; 10) Petitioner's First Amendment rights were violated because Petitioner never received a ruling on the merits of his claims; 11) Petitioner's rights to a jury trial and proof beyond a reasonable doubt on the issue of his dangerousness were violated; and 12) because Petitioner is serving a sentence longer than that which a person convicted of the more serious offense of first degree murder would serve, Petitioner has been deprived of the uniform operation of the laws under state law and in violation of his right to equal protection.

Petitioner's parole hearing was held on March 19, 2008, before a commissioner of the BPH and a deputy commissioner; Petitioner chose to appear without counsel and confirmed that his rights concerning the hearing had been met. (Pet. 80-83, 88.) Petitioner was given an opportunity to correct or clarify the record, and he submitted a work record, a notice regarding the jurisdiction of the BPH, and a copy of his "current case" pending in the Eastern District after the case was transferred from the Central District. (Id. at 87, 90-91, 153.) Petitioner affirmatively stated that he had no objection to the panel. (Id. at 89.)

Petitioner initially declined to discuss the commitment offense, which Petitioner attributed to his heavy drinking. The offense involved the disappearance of an extremely wealthy woman for whom Petitioner served as a business manager, followed by Petitioner's fraudulent sales of the victim's real estate, conversion of her funds, and attempt to purchase a vehicle for over $100,000. Petitioner stated that after he accompanied the victim to Las Vegas, the victim returned to Los Angeles alone, and when Petitioner returned in her car, he found her dead in her home, and he buried her at sea in a rubber raft with weights attached. No body was ever found. Petitioner did not report the death because he wanted to finalize some deals and felt he had something coming. The victim's usual activities suddenly ceased around the time of the alleged trip to Las Vegas. (Id. at 98-102.)

Petitioner had been previously convicted of exhibiting a deadly firearm to a hitchhiker who had stolen his wallet, trespassing, and carrying a concealed weapon in a vehicle. (Id. at 103-04.) Petitioner had an extraordinary disciplinary record and a good work record but no formal vocational education and no recent self-help programs. (Id. at 114-21, 129-30.) The psychological evaluator reported that Petitioner stated that he was not guilty of the charge; the evaluator concluded that Petitioner was in a low risk category for violence, relapse into alcoholism, or recidivism. The extent of Petitioner's exploration and coming to terms with the commitment offense was not addressed because Petitioner asserted his innocence. (Id. at 126-30.) When asked at the parole hearing if he was guilty of any crime in connection with the victim's death, Petitioner testified that at the very worst it would be voluntary manslaughter or manslaughter and not second degree murder because Petitioner pushed the victim in response to her having hit Petitioner over the head with a dust pan, and she fell down the stairs, although Petitioner did not do it intentionally or vindictively. Petitioner believed she broke her neck in the fall, but Petitioner was too scared to summon help, and he buried her a day or two later. Petitioner asserted that he came from a very wealthy family and did not know why he committed the financial crimes after the victim's death. (Id. at 135-40.)

The BPH denied parole for two years and stated in Petitioner's presence that it found that Petitioner posed an unreasonable risk of danger to society or a threat to public safety if released because of the cruel and callous commitment offense committed against an elderly victim with whom Petitioner was in a relationship of trust, Petitioner's failure to participate sufficiently in self-help programs related to alcohol, and Petitioner's criminal record. (Id. at 156-62.)

IV. Failure to State a Due Process Claim concerning the Evidence that Would Entitle Petitioner to Relief

Petitioner argues that the finding that Petitioner was unsuitable for parole because of an unreasonable risk to the public safety was a violation of Petitioner's rights to substantive due process and equal protection guaranteed by the Fourteenth Amendment because it was unsupported by the evidence.

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

The substantive component of due process protects against governmental interference with those rights "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 324-25 (1937). It forbids the government to infringe fundamental liberty interests, such as the right to liberty, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Reno v. Flores, 507 U.S. 292, 301-02 (1993).

Here, Petitioner has failed to allege facts warranting a conclusion that the BPH's decision infringed a federally protected, fundamental right. Petitioner simply concludes that the action of the BPH, which was undertaken in accordance with procedures that satisfied the requirements of procedural due process of law, *fn2 violated his right to substantive due process of law. Petitioner's conclusional allegations do not state facts that point to a real possibility of constitutional error.

Further, it is established that even where state law creates a liberty interest in parole, there is no federal right to be conditionally released before the expiration of a valid sentence. Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir. 2011) (citing Swarthout v. Cooke, 131 S.Ct. at 861-62). In Swarthout v. Cooke, the Court unequivocally determined that the Constitution does not impose on the states a requirement that its decisions to deny parole be supported by a particular quantum of evidence, independent of any requirement imposed by state law. Roberts v. Hartley, 640 F.3d at 1046; Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011). A state's misapplication of its own laws does not provide a basis for granting a federal writ of habeas corpus. Roberts v. Hartley, 640 F.3d at 1046.

Thus, although Petitioner asserts that his claims are based on a right to substantive due process, it is recognized that there is no substantive due process right created by California's parole scheme; if the state affords the procedural protections required by Greenholtz and Cooke, the Constitution requires no more. Roberts v. Hartley, 640 F.3d at 1046.

Accordingly, Petitioner's substantive due process claim will be dismissed. Further, because it does not appear that Petitioner could allege a tenable substantive due process claim if leave to amend were granted, the claim will be dismissed without leave to amend.

It may be that Petitioner is actually arguing that the BPH's finding violated procedural due process because of a lack of evidence to support the finding. The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures with respect to the liberty interest. Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011).

However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).*fn3

Swarthout v. Cooke, 131 S.Ct. 859, 862. In Swarthout, the Court rejected inmates' claims that they were denied a liberty interest because there was an absence of "some evidence" to support the decision to deny parole. The Court stated:

There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication--and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California's received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.)

Swarthout, 131 S.Ct. 859, 862. The Court concluded that the petitioners had received the process that was due as follows:

They 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....

That should have been the beginning and the end of the federal habeas courts' inquiry into whether [the petitioners] received due process.

Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly noted that California's "some evidence" rule is not a substantive federal requirement, and correct application of California's "some evidence" standard is not required by the federal Due Process Clause. Id. at 862-63.

Here, in arguing that the decision of the BPH was not supported by some evidence, Petitioner is asking this Court to engage in the type of analysis prohibited by Swarthout. Petitioner does not state facts that point to a real possibility of constitutional error or that otherwise would entitle Petitioner to habeas relief because California's "some evidence" requirement is not a substantive federal requirement. Review of the record for "some evidence" to support the denial of parole is not within the scope of this Court's habeas review under 28 U.S.C. § 2254.

Further, it is clear from the allegations in the petition and the supporting documentation that Petitioner attended the parole suitability hearing, made statements to the BPH, and received a statement of reasons for the decision. Thus, Petitioner's own allegations establish that he had an opportunity to be heard and received a statement of reasons for the decisions in question. It therefore does not appear that Petitioner could state a tenable procedural due process claim. Accordingly, to the extent that Petitioner's claim rests on procedural due process, it will be dismissed without leave to amend.

Accordingly, the petition will be dismissed without leave to amend insofar as Petitioner alleges that the suitability decision denied due process of law because of an absence of supporting evidence.

V. Equal Protection

Petitioner argues that the suitability decision denied him the equal protection of the laws because it was not supported by any evidence of current dangerousness.

Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race, religion, or membership in a protected class subject to restrictions and limitations necessitated by legitimate penological interests. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). The Equal Protection Clause essentially directs that all persons similarly situated should be treated alike. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Violations of equal protection are shown when a respondent intentionally discriminates against a petitioner based on membership in a protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or when a respondent intentionally treats a member of an identifiable class differently from other similarly situated individuals without a rational basis, or a rational relationship to a legitimate state purpose, for the difference in treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 601-02 (2008).

Here, Petitioner has not alleged that membership in a protected class was the basis of any alleged discrimination. Petitioner has not alleged that there was any invidiousness or any intentional treatment of Petitioner that was different from treatment of any similarly situated individuals, or that any such treatment lacked a rational basis, or a rational relationship to a legitimate state purpose, for the difference in treatment. Instead, Petitioner premises his claim upon the absence of evidence to support the suitability decision.

It may be that Petitioner is arguing that he was denied the equal protection of the laws because he had a short criminal record and, under the circumstances of his commitment offense and his history in prison, he presented no risk to society, and yet he was denied release even though he had served over thirty years for second degree murder. (Pet. at 34, 39, 46-47.) Petitioner may be attempting to argue that he has served a longer sentence than some prisoners who have been convicted of more serious offenses.

However, Petitioner has not alleged or shown that with respect to all pertinent factors of parole suitability, he is similarly situated with others who may have served less time after conviction of murder.

Legislation that discriminates based on characteristics other than race, alienage, national origin, and sex is presumed to be valid and must only be rationally related to a legitimate state interest in order to survive an equal protection challenge.

City of Cleburne, 473 U.S. at 440. Prisoners who are eligible for parole are not a suspect class entitled to heightened scrutiny. See, Mayner v. Callahan, 873 F.2d 1300, 1302 (9th Cir. 1989) (prisoners not a suspect class). Furthermore, public safety is a legitimate state interest. See, Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998) (health and safety are legitimate state interests). Under California law, a prisoner's suitability for parole is dependent upon the effect of the prisoner's release on the public safety. Cal. Pen. Code § 3041(b) (mandating release on parole unless the public safety requires a more lengthy period of incarceration). California's parole system is thus both intended and applied to promote the legitimate state interest of public safety. See, Webber v. Crabtree, 158 F.3d at 461. Petitioner has not shown or even suggested how the decision in the present case could have constituted a violation of equal protection of the laws.

Further, the Court notes that parole consideration is discretionary and does not provide the basis of a fundamental right. Mayner v. Callahan, 873 F.2d 1300, 1301-02 (9th Cir. 1989).

Finally, Petitioner argues that state constitutional provisions create a right to equal protection of the laws and uniform operation of the laws. (Pet. 14, 21.) To the extent that Petitioner rests his equal protection claim on state constitutional provisions or statutes, Petitioner cannot state facts that would entitle him to relief. Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation.

Wilson v. Corcoran, 562 U.S. at 16; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). In a habeas proceeding, this Court is bound by the California Supreme Court's interpretation of California law unless it is determined that the interpretation is untenable or a veiled attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001). Here, there are no facts ...


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