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Chung Kao v. Daniel Paramo

November 16, 2012

CHUNG KAO, PETITIONER,
v.
DANIEL PARAMO, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Audrey B. Collins United States District Judge

ORDER SUMMARILY DISMISSING MARSY'S LAW CHALLENGE TO DURATION OF PAROLE DENIAL

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides in part that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." The Court will dismiss the action summarily because Petitioner's claim, challenging not his confinement per se but only an increase in the span of time before he again will receive parole consideration, plainly lacks legal support.

I.

BACKGROUND

Petitioner Chung Kao is a California state inmate. In 1995 he received a sentence of 19 years to life in prison for murder and other crimes. In March of 2011, the Board of Parole Hearings (BPH or Board) denied Petitioner parole, but the denial is not challenged here. Petitioner instead challenges the Board's concurrent decision that Petitioner must wait five years, instead of a shorter span of time, before he will receive renewed parole consideration.

A 2008 California law, passed by voters as Proposition 9 and commonly called Marsy's Law, significantly increased the amount of time allowable between a prisoner's denial of parole and the prisoner's next parole hearing. Petitioner's specific argument is that the application of the law to him violates the Ex Post Facto Clause, because Petitioner committed his offense prior to passage of Marsy's Law and because, he asserts, it effectively increases his punishment. All authority known to the Court is to the contrary.

II.

COURTS CONSISTENTLY HAVE REJECTED EX POST FACTO CHALLENGES TO POST-CONVICTION INCREASES IN THE DURATION OF TIME BETWEEN PAROLE HEARINGS

A. Applicable Law

In December 2011, this Court's Chief Magistrate Judge Stephen J. Hillman explained persuasively, as follows, why this sort of challenge to a Marsy's-Law-based increase in time until a next parole hearing does not succeed:

Under California's parole hearing statute as it existed prior to the enactment of Marsy's Law, indeterminately-sentenced inmates, such as petitioner, were denied parole for one year unless the BPH found, with stated reasons, that it was unreasonable to expect that parole consideration could be granted the following year, in which case the subsequent hearing could be extended up to five years. CAL. PENAL CODE § 3041.5(b)(2) (2008).

At his November 2, 2010 parole hearing, however, petitioner was subject to the terms of the amended statute. CAL. PENAL CODE § 3041.5(b)(3) authorizes the denial of a subsequent parole hearing for a period of up to fifteen years. CAL. PENAL CODE § 3041.5(b)(3) (2010). Under the amended statute, the BPH may defer the next parole consideration hearing for a period of three, five or seven years if the BPH, considering parole suitability criteria,FN3 finds that such a period of incarceration is required in light of the public and victim's safety. CAL. PENAL CODE § 3041.5(b)[(3)](C). The BPH may defer the next parole consideration hearing for a period of ten or fifteen years if the BPH, considering parole suitability criteria under a clear and convincing evidence standard, finds that a more lengthy period of incarceration is required in light of the public and victim's safety. CAL. PENAL CODE § 3041.5(b)[(3)](A)-(B). The BPH may hold an earlier parole hearing sua sponte or at the prisoner's request "when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner[.]" CAL PENAL CODE §§ 3041.5(b)(4) and (d)(1).

FN3. The parole suitability criteria were not altered by the amended statute. See Gilman v. Schwarzenegger, 638 F.3d 1101, 1104 n.3 (9th Cir. 2011).

The Constitution provides that "No State shall . . . pass any . . . ex post facto Law." U.S. CONST. Art. I, ยง 10. A statute violates the Ex Post Facto Clause if it: (1) punishes as a crime an act that was not criminal when it was committed; (2) makes a crime's punishment greater than when the crime was committed; or (3) deprives a person of a defense available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) . . . . Not every law that disadvantages a defendant is a prohibited ex post facto law. In order to violate the Ex Post Facto Clause, the law must essentially alter "the definition of criminal conduct" or ...


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