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Lawrence Remsen v. J. Holland

October 31, 2012


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


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 are various motions filed in response to the Court's order of August 8, 2012, dismissing most of the claims in the petition without leave to amend and granting Petitioner leave to amend with respect to his federal ex post facto claim or claims.

I. Background

In the original petition, Petitioner, who is serving a Los Angeles County Superior Court sentence of fifteen years to life plus five years for second degree murder imposed in 1983, challenged a decision of California's Board of Parole Hearings (BPH) made after a hearing held on March 19, 2008, finding him unsuitable for parole because he presented an unreasonable risk to the public safety. Petitioner claimed that the unsuitability finding denied his rights to substantive due process and equal protection because it was unsupported by the evidence and because Petitioner had served a longer sentence than sentences served by first degree murderers. Petitioner argued that he was denied an impartial hearing because the BPH was not impartial; he was denied his right to a trial by jury and proof beyond a reasonable doubt on the issue of his dangerousness; and affording less frequent parole hearings and applying other changes to the parole rules that came into effect after Petitioner was convicted constituted ex post facto laws. He alleged that because his counsel made a statement, apparently in argument at the sentencing hearing, that Petitioner would serve not more than fifteen years, the failure to release Petitioner on parole violated his rights to due process and equal protection.

Petitioner also raised a number of claims that were based on state law, namely, that because the BPH failed to recognize its statutory limitations, it was not impartial; the BPH's determination of the length of Petitioner's sentence by making a parole suitability determination exceeded the BPH's authority because it exceeded their discretion, it was a legislative function, and it resulted in a lack of uniformity of sentence and deprived Petitioner of his right under state law to have his sentence set on the basis of proportionality of the offense and earned credits; failing to offer annual parole hearings as was done when Petitioner was convicted was an incorrect interpretation or application of state law; application of Cal. Pen. Code § 3041 to Petitioner violated his right to substantive due process and equal protection because Petitioner is not serving a life sentence under state law; applying parole rules that were changed after Petitioner's conviction violated his right under the state constitution to be protected against ex post facto laws; Petitioner's right of contract and right to a reduction of sentence were violated when his agreement with the state pursuant to Cal. Pen. Code § 2931 was violated; and the BPH lacked the authority under state laws enacted in 1977 to apply rules regarding release other than to credit Petitioner's earned good time credits.

On August 8, 2012, the Court issued its screening order dismissing Petitioner's claims without leave to amend with the exception of Petitioner's federal ex post facto claim or claims, which were dismissed with leave to file a first amended petition within thirty days.

On August 21, 2012, Petitioner filed a one-hundred-fifteen-page motion to alter or amend the Court's order, which the Court understands to constitute a motion to reconsider the Court's ruling pursuant to Fed. R. Civ. P. 59(e). (Doc. 10.)

On September 3, 2012, Petitioner filed a motion for a sixty-day extension of time to raise additional points to respond to the Court's order. *fn1 (Doc. 11.)

On September 7, 2012, Petitioner filed a notice and letter brief in which he sought permission to expand the record in unspecified respects. (Doc. 12.)

On October 7, 2012, Petitioner filed motions for bail and a preliminary injunction to prevent transfer of Petitioner based on his age pending a decision in his present case before the Court. (Doc. 13.)

II. Motion for Reconsideration

A motion for reconsideration is generally treated as a motion to alter or amend judgment under Fed. R. Civ. P. 59(e) if it is filed within the time limit set by Rule 59(e). United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992). Here, Petitioner's motion was filed within the twenty-eight-day limit of Fed. R. Civ. P. 59(e). Accordingly, the Court will consider Petitioner's motion as a motion to reconsider the Court's order pursuant to Rule 59(e).

Relief pursuant to Fed. R. Civ. P. 59(e) is generally within the district court's discretion. Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). Relief under Rule 59(e) is appropriate when there are highly unusual circumstances, such as when the district court is presented with newly discovered or previously unavailable evidence, the district court committed clear error of law or fact, an intervening change in controlling law justifies relief, or relief is necessary to prevent manifest injustice. Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111; School Dist. No. 1J, Multnomah County, Oregon v. AcandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). To avoid being frivolous, such a motion must provide a valid ground for reconsideration. See, MCIC Indemnity Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986).

Here, as the Court's order dismissing most of Petitioner's claims indicated, many of Petitioner's claims are premised on alleged errors in the interpretation or application of state law. Petitioner argues that the state parole laws that were applied to him should not have been applied to him because under state law, he is not serving a life sentence, and he had a right under various state statutes to have his sentence computed pursuant to a particular procedure. Petitioner argues that he earned specific credits according to state statutes. Although Petitioner posits "a federal right of contract," (doc. 10, 2), he is really asserting a specific interpretation of state law as the basis for his claims.

However, as set forth in the Court's original order, such matters do not form a basis for relief in a proceeding pursuant to 28 U.S.C. § 2254, in which the only ground for relief is 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). 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).

In summary, with respect to his state law claims, Petitioner shows no error of fact or law, need to avoid manifest injustice, or other basis for relief under Rule 59(e).

Petitioner also attempts to distinguish federal authority concerning the limited scope of procedural and substantive due process protections applicable to the state parole process. Petitioner cites numerous state enactments and contends that because under state law he is serving a slightly different form of life sentence from that being served by the petitioner in Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011), his case is not governed by Swarthout.

However, even if it were assumed for the sake of argument that Petitioner's sentence of fifteen years to life arises from slightly different state statutes from those involved in Swarthout, the function of the state statutes is to serve as the basis for recognition of a liberty interest in parole that is protected by the Fourteenth Amendment. The United States Supreme Court has noted that it is reasonable to conclude that California's sentencing and parole laws give rise to a state-created liberty interest in parole that requires minimal procedural due process protections. Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011). Petitioner points to no statutes that would affect the underlying holding of the Supreme Court in Swarthout, namely, that assuming that there is a state-created liberty interest in parole, there is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence; the states are under no duty to offer parole to their prisoners; 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 861-63; Roberts v. Hartley, 640 F.3d 1042, 1045-46 (9th Cir. 2011) (citing Swarthout v. Cooke, 131 S.Ct. at 861-62); Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011). The Court reiterates that 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.

Further, although Petitioner appears to assert that his claims are based on federal 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. As the summary of the proceedings in the Court's previous order indicated, there is no basis for a conclusion that Petitioner was denied procedural due process in his state parole proceedings.

Petitioner argues that he was denied his First Amendment right of access to the courts because the state courts did not provide him with a hearing on his claims. The right of meaningful access to the courts prohibits state officials from actively interfering with an inmate's attempt to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right requires a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts. Id. at 351. However, a state is not required to enable a prisoner to discover grievances and to litigate effectively once he is in court; rather, inmates must be provided the tools they need in order to bring to the courts direct or collateral attacks upon their sentences, and challenges to their conditions of confinement. Id. at 354-55; see, Cornett v. Donovan, 51 F.3d 894, 899 (9th Cir. 1995) (recognizing a right through the pleading stage to assistance to permit claims to reach a court for consideration).

Therefore, Petitioner's failure to receive a particular type of hearing once he presented his claim or claims to the state courts is not within the scope of his right of access. Thus, additional submissions by Petitioner in the form of briefing or documentation would not entitle Petitioner to relief on his claim.

In summary, with respect to Petitioner's claim concerning access to the Courts, Petitioner has not shown any factual or legal error or other basis for relief pursuant to Rule 59(e).

Petitioner submits additional materials to the Court, including background concerning his own case that is pertinent to the parole suitability decision (the abstract of judgment, a computation of earned credits, a classification sheet, reports reflecting Petitioner's work and participation in prison, and his commutation application to the governor); materials relating to state legislation (bills, initiative measures, statutes, committee reports, correspondence, and other reports and statements) which appear to pertain to Petitioner's contentions concerning Petitioner's entitlements, and the extent of the BPH's authority, under state law; and materials concerning the sentences and parole history of other prisoners, which appear to relate ...

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