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Preston Gardner v. E. Valenzuela

October 26, 2012

PRESTON GARDNER, PETITIONER,
v.
E. VALENZUELA, RESPONDENT.



The opinion of the court was delivered by: R. Gary Klausner United States District Judge

ORDER: DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY

On July 23, 2012, Petitioner, a prisoner in state custody, filed a 28 U.S.C. § 2254 habeas petition ("Petition") in the United States District Court for the Eastern District of California. The Petition thereafter was transferred to this District and filed on October 16, 2012. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires the summary dismissal of Section 2254 petitions "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, 28 U.S.C. foll. § 2254. The Court has concluded that summary dismissal of the Petition is required, because federal habeas relief is foreclosed for the reasons set forth below.

PRIOR PROCEEDINGS

In 1992, Petitioner was convicted of, among other crimes, first degree murder with the use of a firearm. He was sentenced to 19 years to life with the possibility of parole. (Petition at 2; attached California Supreme Court habeas petition with appended exhibits ("Pet. Ex."), Pet. Ex. A, transcript of February 24, 2010 hearing before the State of California Board of Parole Hearings ("HT") 3.)

On February 24, 2010, Petitioner appeared before the Board of Parole Hearings ("Board") for a subsequent parole consideration hearing, which is the proceeding at issue in this action. (Pet. Ex. at 6a-6c; HT, passim.) Petitioner was represented by counsel at the hearing. (HT 3-4.) Petitioner acknowledged that, prior to the hearing, he received a document listing his rights in connection with the parole consideration hearing and reviewed them with a counselor. (HT 6.) Petitioner and his attorney confirmed that they had met previously to discuss the hearing procedure, Petitioner's rights regarding the hearing, and the factors the Board would be considering. (Id.) Petitioner's attorney acknowledged that Petitioner's rights were met in connection with the hearing. (HT 7.)

During the hearing, Petitioner exercised his right to speak, and he spoke about the circumstances of his commitment offense, his prior criminal history, his conduct in prison (including disciplinary infractions, work and educational history, and self-help program efforts), the letters of support he had received, his parole plans, and the reasons why he should be released on parole. (See HT 22-50.)

Petitioner's counsel presented a closing argument regarding Petitioner's suitability for parole. (HT 59-62.) Petitioner made a statement regarding his desire to be paroled. (HT 62-64.)

Following the hearing, the Board found Petitioner unsuitable for parole, concluding that he poses an unreasonable risk of danger if released from prison. (HT 65.) The Board specifically explained the reasons for its decision and set a five-year deferral period for Petitioner's further consideration for parole. (HT 65-76; hereafter, the "Board Decision.")

Petitioner sought habeas relief in the trial court, the California Court of Appeal, and the California Supreme Court. (Petition at 6; Pet Ex.; Pet. Ex. F-H.) The trial court reviewed the record and concluded, inter alia, that there is "some evidence" to support the Board's decision that Petitioner constitutes a current threat to public safety. (Pet. Ex. F, January 7, 2011 order of the trial court, citing In re Lawrence, 44 Cal. 4th 1181, 1212, 82 Cal. Rptr. 3d 169 (2008), and In re Shaputis, 44 Cal. 4th 1241, 1254, 82 Cal. Rptr. 3d 213 (2008).) Both the California Court of Appeal and the California Supreme Court denied relief summarily. (Pet. Ex. G-H, February 17, 2011 Order of the California Court of Appeal, and September 14, 2011 Order of the California Supreme Court.)

PETITIONER'S HABEAS CLAIM

Petitioner does not allege any habeas claim in the Petition, rather, he directs the Court to "see" the appended copy of his state high court habeas petition "for grounds." (Petition at 6.)

In his California Supreme Court habeas petition, Petitioner argued the following "grounds for relief": (1) the evidence on which the Board relied to find Petitioner unsuitable for parole does not satisfy the Board's rules and California's "some evidence" standard, and thus, due process was violated by the Board Decision; (2) the Board violated due process by relying predominantly on the circumstances of Petitioner's commitment offense; (3) the Board's reliance on the circumstances of the commitment offense was arbitrary and capricious, because Petitioner presented evidence of rehabilitation and that he is not a present danger to society consistent with California Penal Code § 3041(a) and (b); and

(4) the Board's decisionmaking process and policies violated Petitioner's state and federal constitutional protections against arbitrary and capricious governmental actions. (Pet. Ex., appended Memorandum of Points and Authorities at 2.) The Court, ...


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