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Brian Keith Stafford v. R.H. Trimble


November 25, 2012


The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge


This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.


On February 8, 2012, Petitioner filed a "Petition Under 28 USC § 2254 for Writ of Habeas Corpus By a Person in State Custody" in the United States District Court for the Eastern District of California. On February 16, 2012, the United States District Court for the Eastern District of California transferred the case to this Court.

On August 14, 2012, Respondent filed an Answer, asserting:

(1) the Petition is untimely; (2) Grounds Six and Seven of the Petition are unexhausted; and (3) Grounds One, Three, Four, Six and Seven of the Petition are not cognizable on federal habeas review. On September 27, 2012, Petitioner filed a Reply.

Because Petitioner had not yet verified the Petition, on October 2, 2012, the Court issued a Minute Order requiring Petitioner to file a verification.


On March 21, 1991, Petitioner pled guilty to first degree murder pursuant to a plea agreement (Reporter's Transcript ["R.T."] 9-11; Clerk's Transcript ["C.T."] 1909). Petitioner waived his right to a probation report and a continuance of sentencing (R.T. 9). The court imposed a sentence of thirty-three years to life (R.T. 10-11; C.T. 1909). The court also ordered the preparation of a probation report (R.T. 11). The probation report bears a dictation/transcription date of May 16, 1991, although the date of the report's filing in state court is unclear (see "Petitioner's Confidential Probation Report," filed under seal on August 16, 2012). Attached to the probation report is a letter to the probation officer from the prosecuting deputy district attorney, Patrick J. McKinley. This letter, also dated May 16, 1991, describes McKinley's views of the crime and expresses the hope that the letter would be made part of the probation report so that any future parole authority would be aware of Petitioner's allegedly false testimony at the trial of a co-perpetrator.

The Court of Appeal affirmed the judgment on April 2, 1992 (Respondent's Lodgment 6). Petitioner did not file a petition for review.

Petitioner became eligible for an initial parole suitability hearing in 2010. On September 9, 2010, a panel of the California Board of Prison Terms ("Board") convened for an initial parole suitability hearing (see Respondent's Lodgment 33, Ex. "A-1"). Petitioner chose not to attend the hearing, although his attorney was present (id., pp. 104-05). The Board continued the proceeding because documents were missing from Petitioner's "packet" and Petitioner had not received the Board report within ten days prior to the hearing (see Respondent's Lodgment 33, Ex. "A-1," pp. 104-05).*fn1 The Board allowed a deputy district attorney, Michael Carrozzo, to submit a 26-page document consisting of pages from a book entitled "A Death in Santa Barbara," purportedly describing two interviews Petitioner allegedly gave concerning the crime (id., p. 107). The Presiding Commissioner said the Board would incorporate the documents into Petitioner's central file (id.).

On October 29, 2010, Petitioner appeared before the Board for the continued initial parole suitability hearing (see Respondent's Lodgment 33, Ex. "B"). The Board denied parole for seven years (id., pp. 231-46).

Thereafter, Petitioner filed various habeas corpus petitions in the Santa Barbara Superior Court, the Kings County Superior Court, the California Court of Appeal, and the California Supreme Court, all of which were denied (Respondent's Lodgments 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 24, 25, 26, 27, 33, 34, 35, 36, 37).


Petitioner contends:

1. The Santa Barbara Superior Court allegedly abused its discretion and judicial powers by rejecting Petitioner's claim that the trial court allowed Petitioner to enter into a plea agreement "which was prior to sentencing in default as revealed by the conditional statement made and dated letter attached to the probation officer's report" (Ground One);

2. The State allegedly breached a purported provision of the plea agreement supposedly providing that the District Attorney's Office would submit a letter supporting Petitioner's release on parole, because at the parole hearing Mr. Carrozzo described Mr. McKinley's May 16, 1991 letter (Ground Two);

3. The Santa Barbara Superior Court allegedly erred in rejecting Petitioner's habeas petition*fn2 knowing that the plea agreement "could be interpreted that Petitioner would be granted parole in compliance with the law"; the Board applied Marsy's Law*fn3 to Petitioner to deny parole for seven years, assertedly causing Petitioner's sentence to exceed that provided by law (Ground Three);

4. The Santa Barbara Superior Court and the California Court of Appeal allegedly violated Petitioner's constitutional rights "by denying Petitioner's writ claiming Petitioner made claims not in record"; these courts allegedly unlawfully rejected Petitioner's claim that the Board violated Due Process by allowing Mr. Carrozzo to submit documents about which Petitioner assertedly had no knowledge until approximately 50 days later, at a hearing at which Petitioner allegedly was not present and at which Petitioner's counsel allegedly was present only to request a postponement (Ground Four);

5. The Board allegedly violated the constitution and Board protocol by allowing Mr. Carrozzo to submit twenty-six pages of a book into Petitioner's file, assertedly without Petitioner's knowledge (Ground Five);

6. The Santa Barbara Superior Court, the California Court of Appeal, and the California Supreme Court violated Petitioner's constitutional rights by issuing summary denials of Petitioner's habeas petitions (Ground Six); and

7. The California Supreme Court erred by allegedly failing to follow United States Supreme Court law regarding an indigent prisoner's right to legal mail, photocopies, legal forms and meaningful access to the prison law library and the courts (Ground Seven).


I. Grounds Six and Seven of the Petition Plainly Do Not Entitle Petitioner to Federal Habeas Relief.

A district court may dismiss a habeas petition summarily "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing Section 2254 Cases in the District Courts; Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998). It plainly appears that Petitioner is not entitled to federal habeas relief on Grounds Six and Seven of the Petition.

In Ground Six, Petitioner contends that the state courts violated federal law by issuing summary rulings. This claim fails as a matter of law. See Harris v. Rivera, 454 U.S. 339, 344-45 & n.10 (1981) ("Although there are occasions when an explanation of the reasons for a decision may be required by the demands of due process, . . . such occasions are the exception rather than the rule. Federal judges have no general supervisory power over state trial judges; they may not require the observance of any special procedures except when necessary to assure compliance with the dictates of the Federal Constitution"; holding federal court erred in directing state judge to provide an explanation for his decision) (citations omitted); Owens v. Nool, 2010 WL 144364, at *1 (N.D. Cal. Jan. 5, 2010) (dismissing habeas petitioner's claim that the California Court of Appeal "erred in failing to state, in a written opinion, its reasons for denying petitioner's petition"); Stewart v. Sisto, 2008 WL 5178835, at *1 (E.D. Cal. Dec. 10, 2008) ("there is no federal constitutional prohibition preventing state courts from disposing of [the petitioner's] post-conviction claims in a summary fashion. Nor is there a federal requirement that state courts consider post-conviction claims with a full discussion of the merits"); Grant v. Rivers, 920 F. Supp. 769, 783 (E.D. Mich. 1996) ("The failure of the Michigan Court of Appeals to explain its dispositive opinion more completely does not render the decision constitutionally defective; nor is it a ground for relief in federal court on collateral review.") (citation omitted).*fn4 Therefore, Ground Six of the Petition is plainly without merit and should be dismissed with prejudice.

Ground Seven concerns Petitioner's motion for access to the prison library in his habeas proceeding in the California Supreme Court in case number S195647 (see Respondent's Lodgment 34).

Petitioner claims that the California Supreme Court refused to order the California Department of Corrections and Rehabilitation to provide full law library access to Petitioner during the pendency of case number S195647. This claim also cannot merit federal habeas relief. To the extent Ground Seven challenges prison conditions and does not assert a right to release from custody, Petitioner must assert any such claim in a civil rights action, not a habeas proceeding. See Hickman v. Hedgepeth, 2012 WL 2371050, at *2 (E.D. Cal. June 21, 2012), adopted, 2012 WL 3586385 (E.D. Cal. Aug. 20, 2012) ("Petitioner's claims concerning law library access are cognizable in a civil rights action rather than a petition for writ of habeas corpus."); Tewell v. Outlaw, 2008 WL 4216423, at *5 (E.D. Ark. Sept. 12, 2008) (claim that prisoner lacked access to law library "raise[d] a denial of access to courts claim, which is cognizable in a § 1983 action, not a habeas claim") (citations omitted). To the extent Petitioner contends the California Supreme Court committed a procedural error by refusing to order law library access, federal habeas relief is unavailable to redress independent claims of alleged procedural error in state collateral proceedings. See Cooper v. Neven, 641 F.3d 322, 331-32 (9th Cir.), cert. denied, 132 S. Ct. 558 (2011); Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.), cert. denied, 493 U.S. 1012 (1989).

For the foregoing reasons, Ground Six of the Petition should be denied with prejudice and Ground Seven of the Petition should be denied without prejudice.*fn5 The issue of whether Grounds Six and Seven of the Petition are exhausted is moot. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (habeas court may deny unexhausted claim that is not "colorable").

II. The Record Does Not Show that Petitioner's Remaining Grounds Are Untimely.*fn6

The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).

Grounds One and Two

Ground One of the Petition is quite unclear, but appears to allege that the trial court allowed Petitioner to enter into a plea agreement on March 21, 1991, while allegedly knowing that the agreement supposedly already was "in default" because Mr. McKinley allegedly had authored or intended to author the May 16, 1991 letter opposing parole for Petitioner. Ground Two of the Petition alleges that the State breached a purported provision of the plea agreement supposedly providing that the District Attorney's Office would submit a letter supporting Petitioner's release on parole. Grounds One and Two thus appear to challenge Petitioner's conviction, not the Board's parole denial.

Because Petitioner did not file a petition for review in the California Supreme Court, Petitioner's conviction became final forty days from the date the Court of Appeal filed its decision. See Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); former Cal. R. Ct. 24(a), 28(b).*fn7 Thus, Petitioner's conviction became final on May 12, 1992.

State habeas petitioners whose convictions became final prior to AEDPA's effective date have a one-year "grace period" in which to file their federal petitions. See Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir. 2010). Therefore, the statute of limitations on Grounds One and Two began to run on April 25, 1996, unless subsections B, C, or D of 28 U.S.C. section 2244(d)(1) furnish a later accrual date. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).

Subsection B of section 2244(d)(1) is inapplicable. Petitioner does not allege, and the record does not show, that any illegal conduct by the state or those acting for the state "made it impossible for him to file a timely § 2254 petition in federal court." See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009).

Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).

However, the present record does not permit a determination of whether section 2244(d)(1)(D) delays the accrual of Grounds One and Two. Under section 2244(d)(1)(D), "[t]ime begins when the prisoner knows (or through diligence could discover) the important facts. . . ." Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (citation and internal quotations omitted).

Here, with respect to Ground One, the issue of when Petitioner knew or should have known that Mr. McKinley intended to author, or had authored, a letter opposing parole may turn on material facts absent from the present record. With respect to Ground Two, it is unclear whether Petitioner alleges that the purported breach of the plea agreement occurred when Mr. McKinley supposedly authored the letter or when Mr. Corrozzo disclosed the contents of Mr. McKinley's letter at the October 29, 2010 parole hearing, and it is unclear at what point Petitioner knew or should have known of the alleged breach. Thus, the Court cannot conclude from the present record that Ground One or Ground Two is untimely.

Grounds Three, Four and Five

Grounds Three, Four and Five of the Petition contain various challenges relating to Petitioner's parole eligibility proceedings, which culminated in the Board's denial of parole on October 29, 2010. Section 2244(d)(1)(D), not section 2244(d)(1)(A), generally governs the accrual of claims challenging a parole decision. See Mardesich v. Cate, 668 F.3d at 1172; Redd v. McGrath, 343 F.3d 1077, 1081-82 (9th Cir. 2003); see also Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004) (prison disciplinary decision).*fn8 Under applicable law, the Board's decision became final on April 18, 2011, 120 days after the October 29, 2010 decision. See Cal. Penal Code § 3041(b); Cal. Code of Regs., tit. 15, § 2041(h); King v. Biter, 2012 WL 2559263 (E.D. Cal. June 29, 2012); Burch v. Biter, 2012 WL 682856, at *4 (C.D. Cal. Feb. 28, 2012), adopted, 2012 WL 682745 (C.D. Cal. Feb. 29, 2012); Tidwell v. Marshall, 620 F. Supp. 2d 1098, 1110-01 (C.D. Cal. 2009). Thus, the statute of limitations began running as to Grounds Two, Three, Four and Five on April 18, 2011. Petitioner filed the present Petition within one year of that date. Therefore, Grounds Two, Three, Four and Five of the Petition are timely.


For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying and dismissing Ground Six of the Petition with prejudice; (3) denying and dismissing Ground Seven of the Petition without prejudice; and (4) ordering Respondent to file within thirty (30) days of the Court's Order a Supplemental Answer addressing the merits of Grounds One, Two, Three, Four, and Five of the Petition.


Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

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