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Andrew R. Lopez v. Edmund G. Brown

August 9, 2012


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


Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on July 16, 2012.

I. 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).

II. Background

Petitioner alleges that he is an inmate of the California State Prison at Corcoran, California (CSP-COR), serving a sentence of seventeen years to life imposed in 1992 for a conviction of second degree murder sustained in the Stanislaus County Superior Court. Petitioner challenges a decision of California's Board of Parole Hearings (BPH) made after a hearing held on December 7, 2009.

Petitioner alleges the following claims in the petition: 1) the state court's failure to issue orders necessary to enable Petitioner to procure a copy of his "habeas record" (pet. 4) in post-conviction relief proceedings, and the denial of his requests for counsel, were constitutionally inadequate procedures that denied him access to the courts and violated his rights to due process and to the equal protection of the "some evidence" standard; 2) the BPH disregarded a previous order of this Court issued in 2009 to afford a timely, constitutionally adequate parole suitability hearing and thereby violated Petitioner's right to due process by a) depriving Petitioner of a meaningful opportunity to be heard regarding a new psychological evaluation and by not reporting and/or documenting errors in a 2009 psychological report, b) accepting the 2009 report in evidence and relying on it in making a decision, c) allowing a 1992 "POR" into evidence and relying on it despite its unreliability, d) denying parole in the absence of "some evidence" to substantiate its finding that Petitioner would pose a risk to public safety or current dangerousness, in violation of due process as well as California law, e) ignoring evidence that contradicted its findings, f) depriving Petitioner of his protected liberty interests in parole in violation of Cal. Pen. Code § 3041, g) failing to set a parole release date even though both the minimum and maximum release dates had passed, and h) relying solely on unchanging factors of the commitment offense and past substance abuse despite evidence of no violence or substance abuse during incarceration; 3) the BPH's denial of parole when the maximum and minimum parole release dates had passed violated the Eighth Amendment's prohibition of cruel and unusual punishment; 4) the BPH's application to Petitioner of Proposition 9, which increases the minimum parole deferral period and the default maximum deferral period and limits the BPH's discretion to reduce the maximum deferral period, violates the prohibition against ex post facto laws because Petitioner was convicted before it took effect; and 5) parole was denied on the basis of "underground discriminatory practice of SHU status" (id. at 8). (Pet. 1-52.)

Petitioner requests that he be released and the "excess" (pet. at 52) time spent in prison since the parole hearing held on August 1, 2007, which was previously declared unconstitutional by this Court, be deducted from his parole period; this Court's earlier order regarding a new hearing be enforced; the 1992 probation officer's report and the 2009 psychological reports, as well as all references to them, be expunged; the application of Proposition 9 to Petitioner be prohibited; the California Department of Corrections and Rehabilitation (CDCR) and the BPH be ordered to cease the discriminatory practice of denying parole to life inmates because of segregated placement; and an evidentiary hearing be ordered.

Reference to the transcript of the parole suitability hearing held before a panel of commissioners of the BPH on December 7, 2009, reflects that Petitioner appeared before a panel of commissioners of the BPH with counsel, who advocated on his behalf; further, Petitioner was given an opportunity to correct or clarify the record, answered questions from the commissioners under oath, and made a personal statement regarding his suitability. (Doc. 1-1, 130-223, 134, 138, 149-205, 208-14, 214-221.) Petitioner stated that his counsel had reviewed with him the procedures and his rights concerning the parole hearings, and he confirmed that Petitioner or his counsel were given all the documentation on the panel's checklist. (Id. at 139-40, 153-54.) Counsel objected to use of the 2009 psychological report because it was prepared so close to the time of the hearing, and because Petitioner declined to participate in the review process, he had not had a chance to clarify or address the clinician's concerns. (Id. at 141-44.) There was also objection to use of the probation officer's report used at Petitioner's sentencing because Petitioner did not have an opportunity to read it before the judge approved it, and to Petitioner's having been validated as a prison gang member. (Id. at 145-46.)

Petitioner was present when the panel announced the reasons for its finding that Petitioner was unsuitable for parole and would not be considered again for four years because he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison, which included Petitioner's extensive and serious misconduct while in prison, which caused concern that Petitioner could not follow the rules and conditions of parole; the commitment offense, in which Petitioner inflicted without any apparent motive thirteen stab wounds, including wounds to the back of a vulnerable, unarmed, intoxicated victim; Petitioner's criminal history and unstable social history; his failure on previous grants of probation and parole; a psychological report of 2009 which was not totally supportive of release; failure to participate sufficiently in beneficial self-help concerning substance abuse; and his attitude towards the crime, including denying culpability for the offense and lack of insight into the factors causing his criminal conduct. (Id. at 224-34, 205-07.)

III. Denial of Access to the Courts

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).

Title 28 U.S.C. § 2254 provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.

Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. 71-72.

To the extent that Petitioner complains of the state court's procedures of failing to order prison authorities to copy a record of Petitioner's parole proceedings for the purpose of permitting Petitioner to bring a petition for writ of habeas corpus, the Court notes preliminarily that the documentation submitted in support of the petition reveals that Petitioner received a copy of the proceedings, and the allegedly offensive prison rule or policy that limited the provision of copies was repealed. (Id. at 46-50.) It thus appears that the claim is moot in the sense that this Court could not order any effective relief.

Further, Petitioner has not cited any authority, and the Court is aware of none, that Petitioner is entitled to counsel in a state court habeas proceeding for review of a denial of parole.

In any event, Petitioner's claim is not cognizable in this proceeding. 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. - , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). Thus, it is established that federal habeas relief is not available to redress procedural errors in the state collateral review process. Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (claim concerning the alleged bias of a judge in a second post-conviction proceeding for relief); Carriger v. Stewart, 95 F.3d 755, 763 (9th Cir. 1996), vacated on other grounds, Carriger v. Stewart, 132 F.3d 463 (1997) (Brady claim in post-conviction proceedings); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (claim that a state court's delay in deciding a petition for post-conviction relief violated due process rights).

Further, to the extent that Petitioner contends that the rule obstructed his access to the courts, Petitioner's complaint concerns not matters that affect the legality or duration of his confinement, but rather the conditions of his confinement. It is established that a habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.

Therefore, Petitioner's claim concerning access to the courts must be dismissed. Because the defect in Petitioner's pleading is based on the nature of the claim, Petitioner could not state a tenable claim of denial of access to the courts if leave to amend were granted.

Accordingly, it will be recommended that the claim be dismissed without leave to amend. Petitioner may bring his claim by filing a civil rights complaint pursuant to 42 U.S.C. § 1983.

IV. Absence of Some Evidence to Support the Decision

A. Due Process

To the extent that Petitioner complains that the absence of "some evidence" to support the BPH's finding violated his right to due process of law, Petitioner ...

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