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Khalifah E.D. Saif'ullah, Aka Fernando A. Jackson, Sr v. Kevin Chappell


December 15, 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 J. Spencer Letts, 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 24, 2012. The Petition challenges an August 26, 2011 decision of a panel of the California Board of Parole Hearings ("Board") deeming Petitioner unsuitable for parole. Respondent filed an Answer on November 20, 2012.*fn1 Petitioner filed a Traverse on December 3, 2012.


In 1980, a jury found Petitioner guilty of kidnapping for ransom in violation of California Penal Code section 209(a), and found true the allegation that Petitioner personally used a firearm in the commission of the offense (Petition, pp. 2, 5 & Ex. A, second page). The evidence showed that Petitioner approached the victim, pointed a gun at him, and compelled him to enter a car. See Saif'ullah v. Sisto, 2010 WL 3733017, at *1 (E.D. Cal. Sept. 15, 2010). Petitioner and a crime partner drove the victim, tied up in the back seat, to an apartment where they forced the victim to record a ransom tape to send to the victim's parents. Id. Petitioner and the crime partner photographed the victim and asked him if his parents would pay $60,000 for his release. Id. The victim was also injected with some sort of drug. Id. The next day, the victim managed to escape. Id.

Petitioner received a life sentence (Petition, p. 5 & Ex. A, second page). Pursuant to California Penal Code section 3046, Petitioner could not be paroled until he served at least seven years of his sentence. Petitioner's alleged minimum eligible release date was in 1986 (Petition, Ex. C).

On August 26, 2011, Petitioner appeared before the Board for a subsequent parole hearing (Respondent's Lodgment 1, p. 0005-0006). The Board denied parole for seven years (id., pp. 0089-0094). The Board considered factors including Petitioner's commitment offense and criminal history, but relied "heavily" on Petitioner's record of prison discipline, which included twenty rules violation reports (including three since the last hearing in 2008) and seventeen misconduct citations (id., pp. 0062, 0090).

Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, which that court denied in a written order on March 2, 2012 (Respondent's Lodgment 2). Petitioner filed habeas corpus petitions in the California Court of Appeal and the California Supreme Court, which those courts denied summarily (Respondent's Lodgments 3, 4, 5).


Petitioner contends that, because Petitioner allegedly has served his full sentence, the Board's denial of parole assertedly: (1) violated due process; (2) subjected Petitioner to involuntary servitude; and (3) imposed excessive and disproportionate punishment, allegedly in violation of the Eighth Amendment.


A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).

Additionally, 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." 28 U.S.C. § 2254(a). 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). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).


"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). However, an inmate's continued detention beyond the termination of his or her sentence may violate due process. See McNeil v. Director, Patuxent Inst., 407 U.S. 245, 246 (1982); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986).

Petitioner's claims appear to be based on the assertion that Petitioner had completed service of his sentence at the time of the Board's decision, and hence is being detained in purported excess of his sentence.*fn2 Petitioner argues that his life term purportedly was converted by statute to a term of fifty years, which supposedly has been shortened by statute and by earned credits in such a way as to render the term complete (see Petition, pp. 3-7, 10; Traverse, p. 2).*fn3

Petitioner relies on a former provision of California's statute governing certificates of rehabilitation, California Penal Code section 4852.03(2) (Petition at 3). This former provision stated that, for purposes of calculating the rehabilitation period following an inmate's release from custody, crimes with maximum penalties of life imprisonment would be regarded as carrying a maximum penalty of fifty years.*fn4 See Daudert v. People, 94 Cal. App. 3d 580, 584, 156 Cal. Rptr. 640 (1979). The Superior Court rejected this claim (Respondent's Lodgment 2).

Section 4852.03 and the Daudert case concern the certificate of rehabilitation for which a former prisoner may apply following his or her release from prison and after the expiration of a prescribed rehabilitation period. As an incarcerated prisoner, Petitioner was not, and is not, a candidate for a certificate of rehabilitation under section 4852.03. As the Superior Court ruled, the authorities upon which Petitioner relies do not stand for the proposition that Petitioner's life term was transformed into a fifty-year term, or any term shorter than life (see Respondent's Lodgment 2). This Court cannot redetermine the Superior Court's interpretation of state law. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("we have repeatedly held that it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions") (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law"). Accordingly, the Superior Court's rejection of this claim was not unreasonable. See 28 U.S.C. § 2254(d).

Petitioner also appears to contend that the length of his imprisonment has exceeded the imprisonment purportedly indicated in the "matrix" of suggested base terms set forth in section 2282 of Title 15 of the California Code of Regulations (see Petition, pp. 6-7).*fn5 Any such contention lacks merit. The Board is not required to consider the matrix unless and until the Board deems an inmate suitable for parole. See Cal. Code Regs., tit. 15, § 2282(a); In re Dannenberg, 34 Cal. 4th 1061, 1091, 23 Cal. Rptr. 3d 417, 104 P.3d 783 (2005), cert. denied, 546 U.S. 844 (2005), abrogated in part, In re Lawrence, 44 Cal. 4th 1181, 82 Cal. Rptr. 3d 169, 190 P.3d 535 (2008); In re Bush, 161 Cal. App. 4th 133, 141, 74 Cal. Rptr. 3d 256 (2008) ("The Board's decision that a prisoner is suitable for parole precedes and is distinct from its choice of a base term fixing an actual release date."); see also Ramos v. Kane, 2007 WL 1232052, at *4 (N.D. Cal. Apr. 26, 2007) ("going straight to the matrix to calculate the sentence puts the cart before the horse because it ignores critical language in the relevant statute and regulations that requires the prisoner first to be found suitable for parole"). Because the Board did not find Petitioner suitable for parole, it was not required to use the matrix to determine a base term. See Ramos v. Kane, 2007 WL 1232052, at *4; Fernandez v. Kane, 2006 WL 3041083, at *9 (N.D. Cal. Oct. 24, 2006).*fn6

Petitioner's indeterminate life sentence was "'in legal effect a sentence for the maximum [life] term,' subject only to the ameliorative power of the [parole authority] to set a lesser term." People v. Wingo, 14 Cal. 3d 169, 182, 121 Cal. Rptr. 97, 534 P.2d 1001 (1975) (citations omitted); In re Dannenberg, 34 Cal. 4th at 1097-98 (citation and internal quotation marks omitted). The Board did not violate the constitution by denying Petitioner parole; "the Board did not increase [petitioner's] sentence beyond the statutory maximum of life imprisonment for his crime . . . ." Duesler v. Woodford, 269 Fed. App'x 670, 671 (9th Cir. 2008); see also Orozco v. Clark, 705 F. Supp. 2d 1158, 1170 (C.D. Cal. Apr. 5, 2010) ("[T]he Board's decision denying petitioner parole did not increase petitioner's sentence of fifteen years to life in state prison. While petitioner might have hoped or expected to be released sooner, the Board's decision to deny him a parole release date because he would present an unreasonable risk of danger to society has not enhanced or otherwise 'altered' his punishment." (citations and internal quotations omitted)); Paddock v. Mendoza-Powers, 674 F. Supp. 2d 1123, 1128-29 (C.D. Cal. Dec. 2, 2009) ("[A]bsent a determination of parole suitability by the Board, there is no base term [citation]. Thus, petitioner remains subject to an indeterminate life sentence [citation], and petitioner's ongoing detention does not deprive petitioner of due process of law.") (citations, internal quotations and brackets omitted)).*fn7

Petitioner also appears to argue that he is the victim of alleged discrimination because prisoners serving sentences of life without the possibility of parole assertedly may seek gubernatorial pardons after serving thirty years of their sentence, while Petitioner allegedly cannot seek such a pardon despite having served a term longer than thirty years (Petition, p. ii; Traverse, p. 4). Petitioner appears to rely on a former state prison regulation, former section 2817 of Title 15 of the California Code of Regulations. This former regulation provided that prisoners serving a sentence of life without the possibility of parole with one prior felony conviction, who committed the offense after September 11, 1982, would be reviewed for clemency thirty years after reception to prison and every five years thereafter. See People v. Collins, 49 Cal. 4th 175, 224 n.21, 110 Cal. Rptr. 3d 384, 232 P. 3d 32 (2010). Former section 2817 was repealed effective January 19, 1994. See id. In any event, Petitioner is free to seek a gubernatorial pardon. See Cal. Const. Art. 5, § 8 (describing Governor's pardon authority); Cal. Penal Code §§ 4800 et seq. (statutory pardon procedures); People v. Hyung Joon Kim, 45 Cal. 4th 1078, 1106, 90 Cal. Rptr. 3d 355, 202 P.3d 436 (2009) ("One convicted of a crime can . . . seek a pardon from the Governor.") (citation omitted); People v. Ansell, 25 Cal. 4th 868, 874 n.11, 108 Cal. Rptr. 2d 145, 24 P.3d 1174 (2001) (describing pardon procedure). Petitioner also is free to continue to seek parole at an appropriate time in the future.*fn8

Petitioner's continued service of his life term does not violate the Eighth Amendment. "The Eighth Amendment, which forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that 'applies to non-capital sentences.'" Ewing v. California, 538 U.S. 11, 20 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring)). However, "no violation of the Eighth Amendment occurs merely because it is determined that [a life inmate] is unsuitable for parole." Rose v. Swarthout, 2012 WL 2959909, at *6 (E.D. Cal. July 19, 2012) (citations omitted); Harris v. Long, 2012 WL 2061698, at *8 (C.D. Cal. May 10, 2012), adopted, 2012 WL 2061695 (C.D. Cal. June 6, 2012) ("[T]he Court is unaware of any United States Supreme Court case holding that . . . the denial of parole and continued confinement of a prisoner pursuant to a valid indeterminate life sentence . . . constitutes cruel and unusual punishment in violation of the Eighth Amendment.").

"The threshold determination in the eighth amendment proportionality analysis is whether [Petitioner's] sentence was one of the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992), cert denied, 506 U.S. 858 (1992) (citations and quotations omitted; emphasis added); see also Lockyer v. Andrade, 538 U.S. 63, 77 (2003) ("[t]he gross disproportionality principle reserves a constitutional violation for only the extraordinary case"); Rummel v. Estelle, 445 U.S. 263, 272 (1980) ("Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.").

A comparison of Petitioner's crime and his term of imprisonment does not lead to an "inference of gross disproportionality." See Lockyer v. Andrade, 538 U.S. at 77 (upholding sentence of fifty years to life for two convictions of petty theft with a prior theft-related conviction, arising out of two non-violent incidents in which the petitioner shoplifted videotapes, where petitioner's prior convictions were for theft, residential burglary, transportation of marijuana, and escape); Ewing v. California, 538 U.S. at 28-31 (upholding recidivist sentence of twenty-five years to life for felony grand theft consisting of the non-violent theft of three golf clubs); Eckhert v. Tansy, 936 F.2d 444, 448-50 (9th Cir. 1991) (two consecutive life sentences for first-degree kidnapping with use of a weapon not unconstitutional); United States v. Anderson, 561 F.2d 1301, 1303 (9th Cir.), cert. denied, 434 U.S. 943 (1977) (upholding life sentence for kidnapping); Bates v. Johnson, 111 F.2d 966, 966-67 (9th Cir.), cert. denied, 311 U.S. 646 (1940) (upholding life sentence for kidnapping, a "heinous offense"); Fonseca v. Hall, 568 F. Supp. 2d 1110, 1124-25 (C.D. Cal. 2008) (upholding life sentences for kidnapping for ransom).

Petitioner's Thirteenth Amendment claim likewise is without merit. The Thirteenth Amendment prohibits involuntary servitude but contains an express exception for "punishment for a crime whereof the party shall have been duly convicted." U.S. Const. amend. XIII. Despite Plaintiff's assertions to the contrary, Plaintiff has not completed service of his life sentence, the punishment for the crime of which he was "duly convicted." The Thirteenth Amendment does not apply to the present circumstance. See Hale v. State of Ariz., 993 F.2d 1387, 1394 (9th Cir.), cert. denied, 510 U.S. 946 (1993) ("Convicted criminals . . . are not protected by the Thirteenth Amendment against involuntary servitude.") (citation omitted).*fn9


For the foregoing reasons,*fn10 IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) 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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