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Cleveland v. Warden

United States District Court, C.D. California

December 20, 2019

LARRY CHARLES CLEVELAND, Petitioner
v.
WARDEN, Respondent.

          ORDER: SUMMARILY DENYING AND DISMISSING PETITION; AND DENYING CERTIFICATE OF APPEALABILITY

          HONORABLE DALE S. FISCHER UNITED STATES DISTRICT JUDGE.

         On November 13, 2019, Petitioner filed a 28 U.S.C. § 2254 habeas petition in this District [Dkt. 1, “Petition”]. The Petition challenges a September 2017 decision by California's Board of Parole Hearings (“BPH”) finding Petitioner to be unsuitable for release on nonviolent offender parole.

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for writ of habeas corpus “must” be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Here, it plainly appears on the face of the Petition that Petitioner's claims are not cognizable in federal habeas review and could not be rendered cognizable through amendment. Therefore, the Petition must be dismissed, for the reasons set forth below.

         BACKGROUND

         In 2012, in Los Angeles Superior Court, Petitioner was convicted of violations of California Penal Code §§ 148(a)(1) and 12022.1 and California Health & Safety Code §§ 11351, 11375(b)(1), and 11370.2(a). In February 2013, he received a total sentence exceeding 25 years. [See Petition at ECF #45.]

         Following the conclusion of his state direct appeal, Petitioner sought federal habeas relief in No. 2:16-cv-02118-DSF (GJS) in this District. Habeas relief was denied on July 29, 2019, and Petitioner's appeal to the United States Court of Appeals for the Ninth Circuit is pending (No. 19-56092).

         As discussed below, in November 2016, California voters approved Proposition 57, which made parole more available for certain felons convicted of nonviolent crimes (hereafter, “nonviolent offender parole”). On or about July 1, 2017, Petitioner was informed that he was eligible for consideration for nonviolent offender parole. [Petition at ECF ## 83, 99-101.] On September 4, 2017, the BPH denied Petitioner nonviolent offender parole, finding that he posed an unreasonable risk of violence to the community. [Petition at ECF ## 103-04, the “BPH Parole Decision”.] The BPH found that while Petitioner's current commitment offense overall is a mitigating factor (although his multiple Count 5 felonies were an aggravating factor), both his prior criminal history and his institutional behavior were aggravating factors that, on balance, outweighed the mitigating factor. The BPH stated: “The prior criminal history is long and evidences violent conduct (robberies) which when combined with his continued negative institutional conduct supports the conclusion he is a risk of violence to the community.” [Id.]

         Petitioner sought review of the BPH Parole Decision. [Petition at ECF ## 112-14.] On October 16, 2017, the BPH upheld its prior decision, finding that no factual or legal errors had been made and that the regulatory criteria for assessing nonviolent offender parole had been applied properly. [Petition at ECF ## 109-10.]

         Over 17 months passed. On March 21, 2019, Petitioner filed a habeas petition in the Los Angeles Superior Court, which apparently raised the claims alleged in this case. On April 17, 2019, in a written reasoned decision, the Los Angeles Superior Court denied the habeas petition on its merits. [Petition at ECF ## 30-34.] The Superior Court found that the California law “some evidence” standard (discussed infra) had been satisfied. The Superior Court found that the BPH had erred in treating Petitioner's prior criminal history as an aggravating factor and that it, instead, should have been viewed as a mitigating factor. The Superior Court nonetheless found habeas relief unavailable under the governing “some evidence” standard, concluding that: Petitioner's institutional misconduct was probative of current dangerousness and constituted “some evidence” to support the BPH Parole Decision; and Petitioner had received the parole consideration to which he was entitled for due process purposes. The Superior Court rejected Petitioner's contention (also made here) that, under Proposition 57, he is presumptively entitled to release upon serving the full term for his primary offense, noting that Proposition 57, as enacted in Article I, section 32 of the California Constitution, merely provides that a qualifying prisoner “shall be eligible for parole consideration” after completing such a full term. [Id. at 34.]

         Petitioner thereafter sought habeas relief in the California Court of Appeal by habeas petition filed on May 20, 2019 (No. B297694). On May 24, 2019, the California Court of Appeal denied habeas relief, stating that Petitioner had failed to demonstrate a prima face case for relief. [Petition at ECF # 5.] Petitioner then filed a habeas petition in the California Supreme Court (No. S256662), which summarily denied relief on September 25, 2019. [Petition at ECF # 3.]

         PETITIONER'S HABEAS CLAIM

         While it is readily apparent that the Petition challenges the BPH Parole Decision, the Petition itself is difficult to follow, given its length (120 pages) and jumbled nature. In an unusual formatting decision, the Petition commences with 43 pages of exhibits from Petitioner's state habeas filing before picking up with Petitioner's actual federal habeas petition [ECF ## 44-51], before again appending selected portions of Petitioner's state court filings and exhibits. Throughout much of his argument, Petitioner discusses and opines about the Plata/Coleman class actions, a February 2014 “Three-Judge Court” Order, and a related parole review program implemented for non-violent, non-sex-registrant second-strike offenders (known by the acronym “NVSS”). It is unclear why he does so given that (as the exhibits to the Petition demonstrate) Petitioner was reviewed for parole pursuant to the nonviolent offender parole review system implemented through regulations enacted in 2017 following the passage of Proposition 57.

         Be that as it may, the Petition itself alleges only two claims. Ground One asserts that, under the above-noted unidentified Three-Judge Court Order, Petitioner's imprisonment is “unlawful” “because” of the enactment of Proposition 57 as implemented in Art. I, sec. 32(a)(1) of the California Constitution. [Petition at ECF # 5.] Ground Two states only that as a result of Proposition 57's enactment, Petitioner is presumed eligible for parole and is referred to the BPH to determine whether his release would pose an unreasonable risk of violence to the community. [Id.] Neither of these Grounds come close to stating any kind of cognizable federal habeas claim; rather, they are nothing more than an assertion that, under Proposition 57, Petitioner is entitled to release on parole. In an effort to determine what Petitioner actually is complaining about, the Court has carefully reviewed the Petition in toto and has liberally construed it. Excessive and irrelevant verbiage aside, it appears that Petitioner seeks federal habeas relief based on a simple claim.

         Petitioner argues that the Proposition 57 procedures give rise to a federal procedural due process liberty interest. He contends that this liberty interest was violated for two reasons. First, Petitioner complains that the BPH looked to his prior criminal record as a basis for finding him unsuitable for parole, which it is not permitted to do. Second, Petitioner agrees with the state court that California's “some evidence” standard - as it has been interpreted to apply to parole decisions for prisoners with indeterminate terms - applies to nonviolent offender parole decisions, but contends that the “some evidence” requirement is not met as to the BPH Parole Decision. Petitioner argues that there is “no evidence” to support the BPH's ...


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