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Mark James Lyon v. Warden De La Jour


December 5, 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 Audrey B. Collins, 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.


Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 7, 2012, accompanied by a supporting memorandum ("Pet. Mem.") and exhibits. The Petition challenges a December 2, 2010 decision of a panel of the California Board of Parole Hearings ("Board") deeming Petitioner unsuitable for parole. On November 2, 2012, Respondent filed Motion to Dismiss, asserting that: (1) the Petition fails to allege a federal claim for relief; (2) the Petition is untimely; and (3) the Petition is procedurally defaulted. On November 26, 2012, Petitioner filed "Petitioner's Reply to Respondent[']s Notice of Motion and Motion to Dismiss, etc."


In 1987, a jury found Petitioner guilty of first degree murder (Petition, p. 2). According to the description of the crime recited at the parole hearing, Petitioner armed himself with a .44 caliber revolver, a buck knife, a brass knuckle knife with twin blades, and a ski mask (see Petition, Ex. A [Transcript of December 2, 2010 hearing of the Board of Parole Hearings], pp. 74-77, 82-83, 100).*fn1 Petitioner then walked to the home of a neighbor with whom Petitioner had a long-running dispute. When Petitioner pounded on the door, the victim, clad in underwear, came around the side of the house (id., pp. 81, 141). Petitioner immediately shot the victim in the chest twice from a distance of six to eight feet (id., pp. 77, 82, 84, 107). When the victim fell and grabbed Petitioner's leg, Petitioner stabbed the victim "numerous" times (id., pp. 82, 84-85, 101).*fn2 Petitioner then stuffed the body in one of the victim's garbage cans (id., pp. 85-86). Petitioner donned the ski mask, but shortly thereafter was apprehended by police (id., p. 101).

Petitioner appeared at the Board hearing on December 2, 2010, represented by counsel (id., pp. 3-4). Petitioner answered the Board members' questions, discussed the crime and other relevant factors with the Board members, presented documentary evidence, and made a closing statement (id., pp. 72-155). The Board denied parole for seven years (id., pp. 156-64).

On February 18, 2011, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a reasoned order on April 21, 2011 (Respondent's Lodgments 1, 2). On May 19, 2011, Petitioner filed a habeas corpus petition in the California Court of Appeal (Respondent's Lodgment 3). On June 3, 2011, the Court of Appeal denied the petition without prejudice to the filing of a new petition (Respondent's Lodgment 3). On June 17, 2011, Petitioner filed a second habeas corpus petition in the Court of Appeal, which that court denied summarily on June 23, 2011 (Respondent's Lodgment 4). On July 5, 2011, Petitioner filed a petition for review in the California Supreme Court, which that court denied summarily on August 10, 2011 (Respondent's Lodgments 5, 6). On April 23, 2012, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied in a summary order with citations on April 23, 2012 (Respondent's Lodgment 7, 8).*fn3


Petitioner contends:

1. A purported state procedural default allegedly does not bar federal habeas review (Ground One);*fn4

2. The purportedly corrupt state courts assertedly subjected Petitioner to cruel and unusual punishment, by allegedly:

(1) applying the "some evidence" standard improperly; and (2) using asserted falsehoods to deny Petitioner parole (Ground Two);

3. The Superior Court allegedly denied Petitioner a fair hearing, by assertedly: (1) making a conclusory determination that Petitioner lacked "insight" regarding his crime; and (2) falsely claiming that Petitioner's prior crimes and misbehavior in prison rendered Petitioner unsuitable for parole (Ground Three); and

4. The Board allegedly violated due process, by assertedly:

(1) using "argument and not evidence" to deem Petitioner unsuitable for parole; (2) contending that Petitioner's answers to factual questions were "mitigating" the crime; (3) violating a state regulation by considering Petitioner's arrests; and (4) predetermining Petitioner's unsuitability for parole (Ground Four);


The essence of Grounds Two, Three and Four of the Petition is that the Board allegedly erred in deeming Petitioner unsuitable for parole and that the state courts allegedly erred in upholding that decision.*fn6 Petitioner is not entitled to federal habeas relief because, for the following reasons, the Petition does not state a cognizable claim for such relief. See 28 U.S.C. § 2254(a) (federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States"); Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc) (in conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d)).

"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) ("Greenholtz"). In some instances, however, state statutes may create liberty interests in parole release entitled to protection under the federal Due Process Clause. See Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Greenholtz, 442 U.S. at 12. The Ninth Circuit has held that California's statutory provisions governing parole create such a liberty interest. Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir. 2011).*fn7

The California Supreme Court has held, as a matter of state law, that "some evidence" must exist to support a parole denial. See In re Lawrence, 44 Cal. 4th 1181, 1212, 82 Cal. Rptr. 3d 169, 190 P.3d 535 (2008). However, in Swarthout v. Cooke, 131 S. Ct. 859 (2011), the United States Supreme Court rejected the contention that the federal Due Process Clause contains a guarantee of evidentiary sufficiency with respect to a parole determination. Id. at 862 ("No opinion of ours supports converting California's 'some evidence' rule into a substantive federal requirement."); see also Miller v. Oregon Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 717 (9th Cir. 2011) (issue is not whether Board's parole denial was "substantively reasonable," or whether the Board correctly applied state parole standards, but simply was "whether the state provided Miller with the minimum procedural due process outlined in [Swarthout v.] Cooke").*fn8

"In the context of parole, . . . the procedures required are minimal." Swarthout v. Cooke, 131 S. Ct. at 862. Due Process requires that the State furnish a parole applicant with an opportunity to be heard and a statement of reasons for a denial of parole. Greenholtz, 442 U.S. at 16; see Swarthout v. Cooke, 131 S. Ct. at 862. "The Constitution does not require more." Greenholtz, 442 U.S. at 16; accord Swarthout v. Cooke, 131 S. Ct. at 862 (citation omitted); see also Roberts v. Hartley, 640 F.3d at 1046 ("there is no substantive due process right created by the California parole scheme"). In the parole context, then, "[d]ue process is satisfied as long as the state provides an inmate seeking parole with 'an opportunity to be heard and . . . a statement of the reasons why parole was denied.'" Roberts v. Hartley, 640 F.3d at 1046 (quoting Swarthout v. Cooke, 131 S. Ct. at 862). Here, Petitioner received all the process that was due. He was afforded the opportunity to be heard; he addressed the Board members, both through his attorney and on his own behalf. Petitioner also had the opportunity to contest all evidence against him. After the Board made its decision, the Board provided Petitioner with an explanation of that decision. Such procedures are "sufficient to satisfy the Due Process Clause." Id. (citing Swarthout v. Cooke, 131 S. Ct. at 862).

Petitioner's arguments notwithstanding, "[i]t makes no difference that [Petitioner] may have been subjected to a misapplication of California's 'some evidence' standard." Id. "A state's misapplication of its own laws does not provide a basis for granting a federal writ of habeas corpus." Id. (citations omitted). To the extent Petitioner relies on prior Ninth Circuit cases requiring review of the propriety of a California court's "some evidence" determination, Swarthout v. Cooke "overruled that precedent." Roberts v. Hartley, 640 F.3d at 1046 (citation omitted). "[I]t is no federal concern . . . whether California's 'some evidence' rule of judicial review (a procedure beyond what the Constitution demands) was correctly applied." Swarthout v. Cooke, 131 S. Ct. at 863. Similarly, any claim that the Board or the state courts violated state parole statutes, regulations, an internal policy memorandum or a purported "underground rule" governing parole (see, e.g., Pet. Mem., pp. 21, 34-35, 43-46) fails to allege a claim for federal habeas relief. A federal court may grant habeas corpus relief "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Mere errors in the application of state law are not cognizable on habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.), cert. denied, 522 U.S. 881 (1997) (habeas petitioner may not "transform a state law issue into a federal one merely by asserting a violation of due process").

To the extent Petitioner contends the state courts were biased against Petitioner because these courts upheld the Board's unsuitability finding, Petitioner again has failed to allege any cognizable claim for federal habeas relief. The Due Process Clause requires a "fair trial in a fair tribunal" before a judge with no actual bias against the defendant. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997); Smith v. Mahoney, 611 F.3d 978, 997 (9th Cir.), cert. denied, 131 S. Ct. 461 (2010). Where judicial bias is claimed, habeas relief is limited to circumstances in which the state judge's behavior rendered the proceedings so fundamentally unfair as to violate due process. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995), cert. denied, 517 U.S. 1158 (1996). To succeed on a judicial bias claim, Petitioner must "overcome a presumption of honesty and integrity in those serving as adjudicators." Withrow v. Larkin, 421 U.S. 35, 47 (1975); Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.), cert. denied, 555 U.S. 871 (2008). Petitioner's allegations that the state courts erred do not demonstrate judicial bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) ("judicial rulings alone almost never constitute a valid basis" for a showing of bias); Taylor v. Regents of Univ. of Calif., 993 F.2d 710, 712 (9th Cir. 1993), cert. denied, 510 U.S. 1076 (1994) (adverse ruling does not show judicial bias); Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1046 (9th Cir. 1987), aff'd on other grounds, 496 U.S. 543 (1990) ("[e]ven if [trial court's rulings were erroneous . . . , they could not justify a finding of judicial bias").

Petitioner's apparent claim that the Board predetermined his parole denial is without merit. While a prisoner is entitled to have his or her parole application considered by a "neutral and detached body" that is "free from bias or prejudice," O'Bremski v. Maass, 915 F.2d 418, 422 (9th Cir. 1990), cert. denied, 498 U.S. 1096 (1991), administrative adjudicators are presumed to act with honesty and integrity. See Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 496-97 (1976); Withrow v. Larkin, 421 U.S. at 47. To overcome this presumption, a petitioner alleging bias "must show that the adjudicator has prejudged or reasonably appears to have prejudged, an issue." Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995) (internal quotations omitted). A petitioner may make this showing in two ways. First, "the proceedings and surrounding circumstances may demonstrate actual bias on the part of the adjudicator." Id. Second, a petitioner may show that "the adjudicator's pecuniary or personal interest in the outcome of the proceedings . . . create[d] an appearance of partiality that violates due process. . . ." Id. Petitioner has not made either showing. The record demonstrates that the Board reviewed the evidence, listened to the presentations of Petitioner and his counsel, and rendered an individualized determination of Petitioner's unsuitability for parole.

To the extent Petitioner purports to challenge under the Eighth Amendment the Board's decision or the state courts' rulings upholding that decision, any such claim lacks merit. See Lockyer v. Andrade, 538 U.S. 63 (2003) (upholding life sentence for petty theft with a prior); Ewing v. California, 538 U.S. 11 (2003) (upholding life sentence for grand theft); Rose v. Swarthout, 2012 WL 2959909, at *6 (E.D. Cal. July 19, 2012) (rejecting claim that denial of parole to prisoner serving indeterminate life sentence violated the Eighth Amendment); Harris v. Long, 2012 WL 2061698, at *8 (C.D. Cal. May 10, 2012), adopted, 2012 WL 2061695 (C.D. Cal. June 6, 2012) (same).

Also unavailing is Petitioner's argument (see Pet. Mem., p. 19), that the Board violated Petitioner's privilege against self-incrimination by considering statements Petitioner made voluntarily to a psychologist. See Mitchell v. United States, 526 U.S. 314, 326 (1999) (in "cases in which the sentence has been fixed and the judgment of conviction has become final," "there is no further incrimination to be feared," and thus "there is no basis for assertion of the privilege"); McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000) ("Because [parole applicant] had already been convicted and sentenced with respect to the crime of which he was asked to speak [at the hearing], he had no right to refuse to answer on the ground of self-incrimination") (citing Mitchell v. United States, supra); Gay v. Hedgpeth, 2011 WL 7836667, at *4 (C.D. Cal. May 23, 2011), adopted, 2012 WL 1688303 (C.D. Cal. May 14, 2012) ("To the extent petitioner asserts that the psychological evaluation violated his Fifth Amendment privilege against compelled self-incrimination, the Court notes that petitioner would not have a right to refuse to answer questions regarding the offense for which he had already been convicted.") (citations omitted).

Finally, to the extent Petitioner claims that the Board's unsuitability finding violated the Equal Protection Clause (see Pet Mem., p. 51-52), any such claim is meritless. To state an Equal Protection claim, Plaintiff must allege that he was intentionally treated differently from others similarly situated and that there was no rational basis for the difference in treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 446 (1985).*fn9 Petitioner has not shown that he was intentionally treated differently from other similarly situated parole applicants. Petitioner's references to cases in which other inmates purportedly were granted release on parole are insufficient. See Remsen v. Holland, 2012 WL 5386347, at *5 (E.D. Cal. Nov. 1, 2012) (in light of discretionary and "highly-fact bound" nature of parole decision, and legal standards governing parole decision, "the histories of other prisoners do not establish that Petitioner was similarly situated with other prisoners or tend to show any invidious discrimination that would be protected under the federal Equal Protection Clause"); Rowe v. Cuyler, 534 F. Supp. 297, 301 (E.D. Pa. 1982), aff'd, 696 F.2d 985 (3d Cir. 1982) (unpublished disposition) ("Indeed, it is difficult to believe that any two prisoners could ever be considered 'similarly situated' for the purpose of judicial review on equal protection grounds of broadly discretionary decisions [such as eligibility for prison pre-release program] because such decisions may legitimately be informed by a broad variety of an individual's characteristics."); see also Wilson v. Walker, 2011 WL 572116, at *4 (E.D. Cal. Feb. 15, 2011), adopted, 2011 WL 1087285 (E.D. Cal. Mar. 23, 2011) ("petitioner was treated equally to other indeterminate life-term inmates seeking parole in that he was given a hearing pursuant to state law where his individual circumstances were considered in determining whether he was suitable for parole").


For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) granting Respondent's Motion to Dismiss; and (3) denying and dismissing the Petition with prejudice.


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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