Montalvo v. California Department of Corrections

          John Montalvo, Petitioner, Pro Se.

          California Department of Corrections, Respondent, represented by Patricia Webber Heim, Office of the Attorney General.

          Verga, Respondent, represented by Patricia Webber Heim, Office of the Attorney General.

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS, Magistrate Judge.

         INTRODUCTION AND SUMMARY

         Petitioner challenges his failure to obtain a favorable result at a parole suitability hearing. He challenges that result because:

         1. he was sentenced to a term with life imprisonment as a maximum possible term for first degree murder under the ISL (indeterminate sentencing law) structure, the state was compelled to fix a determinate term when the sentencing law was changed to DSL (determinate sentencing law);

         2. in denying petitioner parole eligibility^[1], the Board of Parole Hearings (BPH) committed due process error when it typified his crime as a "hate crime, " something for which he was not convicted;

         3. in scheduling of petitioner's next parole eligibility five years in the future the BPH committed federal due process (ex post facto) error.

         Respondent challenges the merits of petitioner's argument, but also makes untimeliness and procedural default arguments. Because the petition is devoid of merit, and the procedural issues are complex, the undersigned will address the merits only.

         The petition should be denied as: (1) petitioner is simply mistaken about the interpretation of California law; (2) even if that law such could be construed as a federal due process issue; the evidentiary conclusion of at least one member of the BPH that petitioner's crime was a "hate crime" is not reviewable in federal habeas corpus; and finally, (3) the five year delay in scheduling petitioner's next parole hearing does not violate federal ex post facto law.

         PROCEDURAL BACKGROUND

         On June 9, 2011 Petitioner (again) raised the issue of his right to have a parole date set after a hearing before the Board of Parole Hearings [hereinafter "BPH"] held on March 1, 2011, through a Request for Evidentiary Hearing filed in the San Francisco Superior Court in which he also complained of the length of delay before his next hearing was scheduled which will be discussed below. ECF No. 17-2 at 2-10. The Superior Court denied the petition on July 26, 2011, finding it to be successive and piecemeal. ECF No. 17-2 at 12. The First District Court of Appeal summarily denied the Petition on September 14, 2011 without comment, ECF No. 17-2 at 41, as did the California Supreme Court on September 14, 2011. ECF No. 17-2 at 55.

         Petitioner filed a Petition for Habeas Corpus on October 4, 2012 in the Northern District of California. ECF No. 1. Insofar as he was challenging administrative decisions made regarding his parole status, and he was incarcerated in the Eastern District of California, the matter was transferred to this court on June 10, 2013. ECF Nos. 7, 8. Defendant filed a Motion to Dismiss on September 3, 2013, ECF No. 17, which was followed by a Petitioner's Motion for appointment of counsel and an extension of time to respond to the Motion both filed on September 10, 2013, ECF No. 19. On September 25, 2013, the court denied the motion to appoint counsel, ECF No. 21, but additional time to respond was granted. ECF No. 20. On March 4, 2014, the District Judge signed an Order adopting the Findings and Recommendations of the Magistrate Judge stating that the Petition was successive, and ruled that the matter be dismissed without prejudice and the case closed. ECF No. 28. Judgment was entered the same day. ECF No. 29. Petitioner sought, and was granted a certificate of appealability and an appeal was forwarded to the Ninth Circuit Court of Appeals on April 22, 2014. ECF Nos. 31-33. On July 27, 2015 the appellate court issued a Memorandum Decision which reversed the decision of this court and remanded the matter for further proceedings.^[2] ECF No. 35. The apparent basis of the reversal was that every parole eligibility denial permits petitioner to attack that most recent decision in federal habeas even if the same issue, previously disposed of on the merits, is raised time and again.

         The case was reopened in this court on August 20, 2015, and on October 1, 2015 Petitioner again sought appointment of counsel, ECF No. 37, and the request was again denied. ECF No. 38. On December 7, 2015, the Defendant moved to Dismiss the Petition on procedural grounds and on the merits, ECF No. ...