Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCarary v. Kernan

United States District Court, E.D. California

February 21, 2018

ANTHONY McCARARY, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's amended complaint. (ECF No. 11.) For the reasons stated herein, the undersigned recommends that this action be dismissed.

         Again named as defendants are Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) Kernan, CDCR Associate Director Lockwood and High Desert State Prison (“HDSP”) Warden Spearman. Plaintiff alleges that his failure to receive a parole consideration hearing pursuant to Proposition 57 violates his right to equal protection. Plaintiff seeks damages and injunctive relief.[1]

In the original complaint, plaintiff argued that he was entitled to a parole consideration hearing pursuant to Proposition 57 because he was convicted of a non-violent felony. Plaintiff argued that his failure to receive a parole consideration hearing pursuant to Proposition 57 violated his right to due process. To put the equal protection claim raised in the amended complaint in context, the undersigned herein sets forth the analysis of the due process claim raised in the original complaint.

         In the original complaint, plaintiff alleged that following the passage of Proposition 57, defendants enacted regulations that were inconsistent with this proposition. Plaintiff alleged that he was entitled to parole consideration under Proposition 57, but not under the regulations enacted by defendants.

         Proposition 57 changed California parole eligibility rules by adding section 32 to article I of the California Constitution, which provides:

(a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law:
(1) Parole Consideration: Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.
(A) For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.
(2) Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements.
(b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.

Cal. Const., art. I, § 32.

         In the original complaint, plaintiff alleged that Proposition 57 did not permit the consideration of enhancements in determining whether a person has been convicted of a nonviolent felony. Plaintiff argued that defendants enacted regulations to implement Proposition 57 which wrongly permitted the consideration of enhancements in determining whether a person had been convicted of a nonviolent felony, in violation of his right to due process. The undersigned rejected this argument for the reasons stated herein.

         Plaintiff alleged that he was convicted of violating California Penal Code § 245, i.e, assault with a deadly weapon, which is a nonviolent offense under Proposition 57. Attached to plaintiff's original complaint were exhibits indicating that plaintiff had two enhancements for violating California Penal Code sections 12022.5(a) (use ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.