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Young v. Lozano

United States District Court, E.D. California

January 13, 2020

HOWARD YOUNG, Petitioner,
v.
JARED LOZANO, Warden, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

         Introduction and Summary

         Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 626(b)(1) and Local Rule 302(c).

         Petitioner brings claims that he was denied due process during a “parole suitability” hearing. Respondent moves to dismiss the petition on the following two grounds: 1) the court lacks habeas corpus jurisdiction pursuant to Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc); and 2) the petition fails to state a cognizable federal claim. ECF No. 20. Respondent attempts to expand Nettles past its breaking point, and the motion based on lack of jurisdiction should be denied. Because it is unclear exactly what type of state proceeding is at issue here for which petitioner asserts due process violations, and what federal process is due for the proceeding, the undersigned finds it is appropriate to deny the motion to dismiss on this ground and recommend an answer be filed upon adoption of these Findings and Recommendations. With a fuller record and additional information, respondent may urge again, where appropriate, that the violations asserted involve state law only. Finally, petitioner's motion for discovery, ECF No. 22, remains premature, as the answer ordered herein must be accompanied by all relevant record documents. If petitioner believes at that time that relevant documents have not been provided, he may bring it to the court's attention.

         Factual Background

         The California Court of Appeal fairly sets forth the facts germane to this habeas petition in People v. Young, No. H030682, 2008 WL 1748341, at *1 (Cal.Ct.App. Apr. 17, 2008):

Defendant Howard Allen Young was convicted after jury trial of 14 counts of second degree burglary (Pen.Code, §§ 459, 460, subd. (b)), [fn. 1 omitted] 14 counts of grand theft (§§ 484, 487, subd. (a)), and one count of selling stolen property (§ 496, subd. (a)). The jury found as to three counts of grand theft that the loss exceeded $50, 000, and as to another count of grand theft that the loss exceeded $150, 000 (§ 12022.6, subds. (a)(1) & (2)). In addition, the jury found that defendant had a prior serious felony conviction for kidnapping that qualified as a strike. (§ 1170.12.) After denying defendant's Romero [fn. 2 omitted] motion, the trial court sentenced defendant to state prison for a term of 30 years, eight months.

         The present petition does not involve petitioner's conviction, but rather a denial of parole, or as termed by petitioner-“parole suitability.” However, petitioner was apparently not sentenced indeterminately, and the First Amended Petition (“FAP”) and motion to dismiss are less than clear about the type of parole hearing at which petitioner alleges a denial of due process; it is possible that the type of hearing makes a difference here. Petitioner alleges basic due process violations, i.e., not given the opportunity to be heard, as well as various violations of state regulatory procedures in his petition.

         Federal Habeas Corpus Jurisdiction

         Citing Nettles, respondent asserts here that if petitioner were to prevail on his claim, the relief to be awarded “would not necessarily lead to immediate or speedier release.” Nettles, supra, 830 F.3d at 934-935. As a result, respondent argues this court has no habeas corpus jurisdiction. Nettles cannot hold the weight assigned to it by respondent and it “necessarily” must be viewed in the context of longstanding habeas corpus principles.

         Nettles involved a claim by a prisoner serving an indeterminate life sentence that an expungement of his disciplinary violation and concomitant loss of time credits implicated his release status because his chances of parole in the future would be greatly benefitted without having the disciplinary violation considered at his future parole hearing. The Ninth Circuit, en banc, found that the claim was too speculative to be heard in habeas corpus because disciplinary violations were but a factor in parole suitability determinations, and as such, would not sufficiently implicate a speedier setting of a parole date. Nettles, 830 F.3d at 935. And, because restoration of time credits could be entirely beside the point for an indeterminately sentenced, i.e., life imprisoned, petitioner, as opposed to a determinately sentenced prisoner where time credits actually reduce the adjudged incarceration sentence, there was no habeas rationale for reviewing a disciplinary conviction for the life prisoner. See Sevilla v. Miller, No. 15CV1280-DMS (JLB), 2016 WL 8606772, at *5 (S.D. Cal. Dec. 28, 2016) (citing In re Jenkins, 50 Cal.4th 1167, 1179-1180 (2010)). The vast number of cases following Nettles have involved a claim similar to Nettles, or, have been simply a variant on the same theme. See, e.g., Myers v. Lozano, No. 2:19-CV-1141 DB P, 2019 WL 5390035 (E.D. Cal. Oct. 22, 2019); Gordon v. Premo, 757 Fed.Appx. 637 (9th Cir. 2019). But cf. Adams v. Frauenheim, No. 17-CV-01289-EMC, 2018 WL 3046939 (N.D. Cal. June 14, 2018) (habeas jurisdiction existed for a claim asserting that new resentencing laws should be applied to the petitioner's sentence.)

         The situation here is unlike Nettles in that petitioner here does not seek relief to obtain in a present proceeding, not itself implicating release on parole, some type of advantage for a future proceeding. He contends that the alleged due process errors poisoned his past hearing directly implicating release on parole. In asking in the FAP “for relief to which he may be entitled, ” petitioner impliedly asserts that he should be found suitable for parole and a parole date set, (or at a minimum he should be given another opportunity at achieving that result in the state system) as a result of deficiencies in the parole suitability hearing itself. Petitioner's situation is precisely the same as any petitioner who challenges his criminal judgment, or some specific aspect of it, e.g., evidentiary hearing finding a confession voluntary. A favorable outcome in the theorized habeas action does not guarantee the petitioner an acquittal or termination of his incarcerated status; the vast majority of favorable outcomes permit simply another chance to have his guilt adjudicated, another evidentiary hearing, or sentence recalculated and so forth-presumably without the previously found federal, constitutional error. The vast majority of habeas outcomes do not order immediate release but rather give the state a chance to retry the case or otherwise rehear the matter at issue, without the error.

A federal court is vested “ ‘with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus.' ” Hilton v. Braunskill,481 U.S. 770, 775, 107 S.Ct. 2113, 2118, 95 L.Ed.2d 724 (1987) (quoting In re Bonner,151 U.S. 242, 261, 14 S.Ct. 323, 327, 38 L.Ed. 149 (1894)). The court is “free ... to fashion the remedy as law and justice require ... [and is not required] to order ... [petitioner's] immediate release from physical custody.” Davis v. Reynolds, 890 F.2d 1105, 1112 (10th Cir.1989) (footnote omitted); see also Fed.R.App.P. 23(c). “Generally, a district court ruling in the petitioner's favor in a habeas case provides a reasonable time in order to afford the State an opportunity to re-try ...

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