United States District Court, N.D. California
JOHN B. TIDWELL, Petitioner,
RONALD DAVIS, Respondent.
ORDER OF DISMISSAL
M. CHEN, United States District Judge
Tidwell, an inmate at San Quentin State Prison, filed this
pro se action seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. His petition is now before
the court for review pursuant to 28 U.S.C. § 2243 and
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts.
1978, Mr. Tidwell was convicted in Orange County Superior
Court of first degree murder, with use of a shotgun. Docket
No. 2 at 5. Mr. Tidwell reports that he was sentenced to an
indeterminate sentence of seven years to life in prison.
Docket No. 1 at 12. Mr. Tidwell was 26 years old when he
committed the murder. Id. at 12.
11, 2015, the Board of Parole Hearings (BPH) granted Mr.
Tidwell parole. On October 23, 2015, Governor Brown reversed
the decision of the BPH. Docket No. 2 at 2-4; see
generally Cal. Const., Art. V, § 8(b) (granting
Governor the power to review the parole board's decisions
regarding parole for murderers). In this action, Mr. Tidwell
challenges the decision of Governor Brown that resulted in
the denial of parole for him. Mr. Tidwell alleges that he
filed unsuccessful habeas petitions in the California courts
before he filed this action.
court may entertain a petition for writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). A
district court considering an application for a writ of
habeas corpus shall “award the writ or issue an order
directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto.” 28 U.S.C. § 2243.
Tidwell contends that his continued incarceration -- now 39
years into his 7-to-life sentence -- violates his rights
under the U.S. Constitution's Eighth Amendment and under
state law. He also contends that the denial of parole
violated his right to due process under the U.S.
Constitution's Fourteenth Amendment.
Eighth Amendment's “Cruel and Unusual Punishments
Clause prohibits the imposition of inherently barbaric
punishments under all circumstances.” Graham v.
Florida, 560 U.S. 48, 59 (2010). “For the most
part, however, the [Supreme] Court's precedents consider
punishments challenged not as inherently barbaric but as
disproportionate to the crime.” Id. The Eighth
Amendment contains a “narrow” proportionality
principle - one that “does not require strict
proportionality between crime and sentence, ” and
forbids only “extreme sentences that are 'grossly
disproportionate' to the crime.” Id. at
59-60. “[O]outside the context of capital punishment,
successful challenges to the proportionality of particular
sentences [will be] exceedingly rare.” Solem v.
Helm, 463 U.S. 277, 289-90 (1983); see also Crosby
v. Schwartz, 678 F.3d 784, 795 (9th Cir. 2012)
(“Circumstances satisfying the gross disproportionality
principle are rare and extreme, and constitutional violations
on that ground are 'only for the extraordinary
case'”). Only in that rare case where a comparison
of the gravity of the offense and the severity of the
sentence leads to an inference of gross disproportionality
does the court compare a petitioner's sentence with
sentences for other offenders in the jurisdiction, and for
the same crime in other jurisdictions, to determine whether
it is cruel and unusual punishment. Graham, 560 U.S.
sentence of life in prison (or 25-years-to-life) for a murder
does not lead to an inference of gross disproportionality and
therefore does not amount to cruel and unusual punishment
forbidden by the Eighth Amendment. See United States v.
LaFleur, 971 F.2d 200, 211 (9th Cir. 1991) (“Under
Hamelin [v. Michigan, 501 U.S. 957 (1991)], it is
clear that a mandatory life sentence for murder does not
constitute cruel and unusual punishment”); cf.
Solem, 463 U.S. at 290 n.15 (discussing earlier case in
which it had found the death penalty to be excessive for
felony murder in the circumstances of a particular case;
“clearly no sentence of imprisonment would be
disproportionate” for the felony murder of an elderly
couple). Lengthy sentences for crimes less serious than
murder also have been upheld by the Supreme Court and Ninth
Circuit. See e.g., Ewing v. California, 538 U.S. 11,
29-31 (2003) (upholding sentence of 25-years-to-life for
recidivist convicted most recently of grand theft);
Locker v. Andrade, 538 U.S. 63, 76 (2003) (upholding
sentence of two consecutive terms of 25-years-to-life for
recidivist convicted most recently of two counts of petty
theft with a prior conviction); Hamelin, 501 U.S. at
996 (upholding sentence of life without possibility of parole
for first offense of possession of 672 grams of cocaine);
Nunes v. Ramirez-Palmer, 485 F.3d 432, 439 (9th Cir.
2007) (upholding sentence of 25-years-to-life for the
underlying offense of petty theft with a prior conviction
after finding petitioner's criminal history was longer,
more prolific, and more violent than the petitioner's in
Andrade, who suffered a harsher sentence); Cacoperdo v.
Demosthenes, 37 F.3d 504, 508 (9th Cir. 1994) (sentence
of ineligibility for parole for 40 years not grossly
disproportionate when compared with gravity of sexual
even if Mr. Tidwell must spend the rest of his life in prison
as a result of the Governor's decision -- which is a
doubtful proposition, given that the Governor did not
determine that Mr. Tidwell shall never receive parole and
given that Mr. Tidwell will have another parole hearing in 15
years or less -- Mr. Tidwell's continued imprisonment
would not run afoul of the Eighth Amendment. Life
imprisonment for first degree murder committed by an adult is
not so disproportionate to the crime that it could be said to
amount to cruel and unusual punishment under the Eighth
Amendment of the U.S. Constitution. The Eighth Amendment
claim is dismissed.
Law Claim: Mr. Tidwell also urges that the
Governor's decision was erroneous under state law. A
“federal court may issue a writ of habeas corpus to a
state prisoner 'only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the
United States.'” Swarthout v. Cooke, 562
U.S. 216, 219 (2011) (citations omitted.) Federal habeas
relief is not available for ...