United States District Court, E.D. California
Montalvo, Petitioner, Pro Se.
California Department of Corrections, Respondent, represented
by Patricia Webber Heim, Office of the Attorney General.
Respondent, represented by Patricia Webber Heim, Office of
the Attorney General.
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
challenges his failure to obtain a favorable result at a
parole suitability hearing. He challenges that result
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);
denying petitioner parole eligibility, 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;
scheduling of petitioner's next parole eligibility five
years in the future the BPH committed federal due process (ex
post facto) error.
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.
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.
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.
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. 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
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.