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Owens v. California Board of Prison Terms

United States District Court, Ninth Circuit

August 9, 2013

KIMMIE L. OWENS, Petitioner,
v.
CALIFORNIA BOARD OF PRISON TERMS, Respondent.

ORDER

KENDALL J. NEWMAN, District Judge.

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a life sentence following his 1977 conviction for murder. Petitioner has consented to the jurisdiction of the undersigned. (ECF No. 4.)

This action is proceeding on the original petition. (ECF 1.) Petitioner raises three claims. First, petitioner alleges that his sentence violates the Eighth Amendment. Second, petitioner alleges that the finding by the Board of Parole Hearings ("BPH") that he posed an unreasonable risk of danger if released was not supported by some evidence. Third, petitioner alleges that the BPH decision finding him unsuitable for parole was based on an inaccurate psychological evaluation.

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if 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...." Rule 4, 28 U.S.C. foll. § 2254. It is plain from the petition and the attachments thereto that petitioner is not entitled to relief in this action. Accordingly, for the reasons discussed herein, this action is dismissed.

Claim One

Petitioner alleges that in 1977, he was sentenced to 7 years to life under the Indeterminate Sentencing Law ("ISL"). (ECF No. 1 at 16.) Petitioner alleges that his minimum eligible parole date ("MEPD") was originally set for February 1984. (Id.) Petitioner alleges that respondent ignored the MEPD set under the ISL and reset it to February 1985. (Id. at 17.) Petitioner argues that the BPT continues to ignore the fact that his fixed term was reset. Petitioner argues that his "new" sentence violates the Eighth Amendment.

Title 28 U.S.C. § 2254(d)(1) provides that an application for writ of habeas corpus shall not be granted with respect to any claim that was adjudicated in State court proceeding unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.

"In examining the reasonableness of the state courts' decisions, we look to the last explained state-court judgment' on [the] claim." Milke v. Ryan , 711 F.3d 998, 1005 (9th Cir. 2013) (quoting Ylst v. Nunnemaker , 501 U.S. 797, 805 (1991)); see, e.g., Avila v. Galaza , 297 F.3d 911, 918 n. 6 (9th Cir. 2002) (examining a referee's report denying habeas petition because it was the last reasoned decision of the state court).

In the instant case, the last state court to issue a reasoned decision addressing petitioner's Eighth Amendment claim was the San Joaquin County Superior Court. (ECF No. 1 at 22-23, 26, 28.) The San Joaquin County Superior Court denied this claim for the reasons stated herein:

Regarding petitioner's first contention, case law holds that the ISL is constitutional so long as the sentence is proportionate to the crime committed and so long as the sentence does not shock the conscience or offend fundamental notions of human dignity.
The California Constitution's prohibition of cruel or unusual punishment similarly prohibits imposing a criminal sentence which is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." ( In re Lynch (1972) 8 Cal.3d 410 , 424, fn. omitted; see also People v. Dillon (1983) 34 Cal.3d 441 , 478, 194 Cal.Rptr. 390, 668 P.2d 697 (Dillon); Cal. Const., art. I, 17.)
We, like the trial court when it determined the sentence and when it later refused to modify the sentence, use a three-pronged approach to determine whether particular sentence is grossly disproportionate. First, we review "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." ( In re Lynch, supra , 8 Cal.3d at p. 425.) Second, we compare the challenged punishment with punishments prescribed for more serious crimes in our jurisdiction. (Id. at p. 426.) The importance of each of these prongs depends upon the facts of each specific case. ( In re DeBeque (1989) 212 Cal.App.3d 241 , 249.) Indeed, we may base our decision on the first prong alone. ( Dillon, supra , 34 Cal.3d at pp. 479, 482-488.) People v. Johnson (2010) 183 Cal.App.4th 253 , 296-97.

Accordingly, based upon the foregoing, petitioner's first contention fails. (Id. at 23.)

With the exception of capital cases, successful Eighth Amendment challenges to the proportionality of a sentence have been "exceedingly rare." Rummel v. Estelle , 445 U.S. 263, 272 (1980). The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Solem v. Helm , 463 U.S. 277, 288, 303 (1983). A life sentence for murder, even without the possibility of ...


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