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Carr v. R.J. Rackley

United States District Court, E.D. California

April 10, 2017

MARION ALEXANDER CARR, Petitioner,
v.
R.J. RACKLEY, Respondent.

          ORDER & FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE 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 has filed an application to proceed in forma pauperis. (ECF No. 3.) Good causes appearing, the application to proceed in forma pauperis is granted.

         Rule 4 of the Federal Rules Governing Section 2254 Cases provides that if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief, the district court must dismiss the petition. For the reasons stated herein, the undersigned finds that it is clear that petitioner is not entitled to relief. Accordingly, this action should be dismissed.

         Petitioner was convicted of first degree murder in 1977 and sentenced to 7 years to life in prison. In this action, petitioner challenges parole suitability proceedings. Petitioner raises the following claims. First, petitioner appears to challenge the frequency of suitability hearings he receives pursuant to Marsy's law. (ECF No. 1 at 9.) Second, petitioner argues that California Penal Code § 1168 and § 1170.2 require the Board of Parole Hearings (“BPH”) to set a release date for him. (Id. at 10.) Third, petitioner argues that Butler requires the BPH to set a release date for him. (Id. at 9.) Fourth, petitioner argues that the BPH has relied on improper factors, such as the circumstances of his commitment offense, to find him unsuitable for parole. (Id. at 10.) Fifth, petitioner argues that application of the more onerous parole suitability standards set forth in California Penal Code § 3041 violates the Ex Post Facto Clause. (Id. at 27.) Sixth, petitioner argues that the length of his current incarceration, 33 years, violates the Eighth Amendment. (Id. at 32.) Seventh, petitioner also appears to argue that the release of his co-defendants on parole demonstrates that the BPH's failure to find petitioner suitable for parole is unconstitutional. (Id. at 19.)

         Claim 1: Marsy's Law

         Under Proposition 9, i.e., Marsy's Law, enacted in 2008, the minimum deferral period between parole hearings was increased from one to three years, and the maximum deferral period from five to fifteen years. Gilman v. Schwarzenegger, 638 F.3d 1101, 1104 (9th Cir. 2011). Petitioner is apparently arguing that application of Marsy's Law violates the Ex Post Facto Clause.

         The Ninth Circuit has held, however, that unless a state prisoner's claim lies at the core of habeas corpus, it may not be brought in habeas corpus but must be brought, ‘“if at all, ' under § 1983.” Nettles v. Grounds, 830 F.3d 922, 925, 930-31 (9th Cir. 2016) (en banc). Claims that lie in the “core of habeas corpus” are those that, if successful, would “necessarily lead to … immediate or earlier release from confinement.” Id. at 935. Were petitioner to succeed on an ex post facto claim regarding any decrease in the frequency of his parole hearings caused by application of Marsy's Law, the only relief he would obtain through this action is an earlier parole hearing, which would not necessarily lead to his immediate or earlier release. Accordingly, the court lacks jurisdiction over this claim.[1]

         Claim 2: Failure to Set Release Date

         Petitioner argues that California Penal Code § 1168 and § 1170.2 require the BPH to set a release date for him.

         California Penal Code § 1170.2(a) and (b) describe how the BPH should determine a term of imprisonment for those inmates who committed felonies prior to the enactment of the Determinate Sentencing Law (“DSL”) on July 1, 1977, i.e., inmates sentenced under the Indeterminate Sentencing Law (“ISL”).

         Section 1170.2(a) provides that the BPH shall convert indeterminate sentences to determinate sentences under the new law where applicable, and section 1170.2(b) sets forth steps on how and when to calculate a parole release date. See Lateef v. Horel, 2009 WL 4251325 at *3 (N.D. Cal. 2009). Section 1170.2(b) states that after the BPH re-calculates a prisoner's sentence under the DSL, the BPH shall establish a parole date unless it is determined that the prisoner should serve a longer term than that which was re-calculated. Id. If the BPH makes that determination, the prisoner shall have a hearing either prior to October 1, 1978, or within 120 days of the date he arrives in prison. Id. Altogether, section 1170.2 authorizes the BPH to recalculate an inmate's ISL term into a DSL term for most felonies in order to afford the inmate an earlier release when a sentence under the DSL would have expired prior to an ISL release date. Id., citing In re Olson, 149 Cal.App.4th 790, 793 (2007).

         Although petitioner committed his offense prior to July 1, 1977 (see ECF No. 1-1 at 13), section 1170.2 is still inapplicable to petitioner because a sentence for first degree murder was an indeterminate term both before and after the enactment of the DSL. Id., citing People v. Felix, 22 Cal.4th 651, 654 (2000) (recognizing that after the DSL, “[s]ome crimes, however, remain punishable by imprisonment for either some number of years to life, or simply life.”) (internal quotation omitted); In re Monigold, 139 Cal.App.3d 485, 490 (1983), and therefore, the recalculation provision of 1170.2 is irrelevant to petitioner.

         Petitioner also appears to argue that section 1170.2(e) requires the BPH to release him on a date certain. The undersigned disagrees. Section 1170.2(e) states, “In the case of any inmate who committed a felony prior to July 1, 1977, who would have been sentenced under Section 1168 if the felony was committed on or after July 1, 1977, the Board of Prison Terms shall provide for release from prison as provided for by this code.” Section 1168 states that every person who commits a crime that provides for three time periods of imprisonment shall be sentenced under a fixed term, i.e., sections 1170 et seq., while all other people are not entitled to have their terms of imprisonment fixed.

         Petitioner is not entitled to have a date certain upon which he will be released pursuant to section 1170.2(e); rather, the BPH shall determine when release is appropriate. See Lateef v. Horel, 2009 WL 4251325 at * 3-4; citing In re Monigold, 139 Cal.App.3d at 491 (explaining the distinction between those inmates sentenced to determinate sentences from those sentenced to indeterminate sentences by stating, “Prisoners sentenced to determinate terms had a date certain upon which they would be released, while those sentenced to indeterminate terms were to be released on parole when the Board of Prison Terms determined that release was appropriate”); see also In re Stanworth, 33 Cal.3d 176, 183 (1982) (stating that the ISL and DSL did ...


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