Opinion
CV 21-6604-DSF(E)
12-09-2021
KAREEM BROWN, Petitioner, v. R.C. JOHNSON, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a “Petition for Writ of Habeas Corpus By a Person in State Custody” on August 13, 2021. The Petition challenges a November 7, 2019 decision of a panel of the California Board of Parole Hearings (“Board”) (Petition, pp. 5a-5b; Traverse, p. 1). Respondent filed an Answer on October 7, 2021. Petitioner filed “Petitioner[']s Traverse, etc.” (“Traverse”) on November 29, 2021.
BACKGROUND
In 1997, Petitioner pled guilty to second degree murder with a firearm enhancement, a crime Petitioner committed at the age of fifteen (Petition, p. 2; Respondent's Lodgment 1; Respondent's Lodgment 6 [California Supreme Court petition in S2657804], ECF Dkt. No. 10-6, p. 14). Petitioner received a sentence of twenty years to life (Petition, Ex. 2; Respondent's Lodgment 1). In 2004, a jury found Petitioner guilty of assault by a life inmate with great bodily injury and battery on a non-confined person by a prisoner, and Petitioner received a sentence of twenty-one years, consecutive to the murder sentence (see Respondent's Lodgment 3; see People v. Brown, 2009 WL 3650168, at *1 (Cal.Ct.App. Nov. 5, 2009)).
Because Petitioner's California Supreme Court petition does not bear consecutive numbers, the Court uses the ECF pagination.
On November 7, 2019, the Board held a parole suitability hearing and found Petitioner unsuitable for parole (Respondent's Lodgment 3; Respondent's Lodgment 6 [California Supreme Court petition in S2657804], Ex. A, ECF Dkt. No. 10-6, pp. 42-137 [hearing transcript]).
Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a reasoned decision (Respondent's Lodgments 2, 3). Petitioner filed habeas corpus petitions in the California Court of Appeal and the California Supreme Court, which those courts denied summarily (Respondent's Lodgments 4, 5, 6, 7).
PETITIONER'S CONTENTIONS; RELIEF SOUGHT
Petitioner contends:
1. The Board's denial of parole allegedly was arbitrary and capricious in violation of due process because the Board assertedly did not articulate a “rational Nexus” between Petitioner's rules violations for cellphone use (incurred after Petitioner's 2014 parole hearing) and Petitioner's current dangerousness (Ground One); and
2. The Board allegedly violated due process by assertedly failing to provide Petitioner with the “Youth Offender Hearing” allegedly required by Senate Bill “266" [sic] (Ground Two).
Petitioner seeks an order granting the Petition and requiring the Board to conduct “an authentic ‘youth offender' hearing with the regulations to govern” (Traverse, p. 10).
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996" (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
Additionally, federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
For the reasons discussed below, Petitioner has failed to demonstrate that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37. Accordingly, the Petition should be denied and dismissed with prejudice.
Consequently, the Court need not, and does not, determine the extent to which the AEDPA standard of review may apply to any of the issues in this case. See Frantz v. Hazey, 533 F.3d at 736-37.
The Court has read, considered and rejected on the merits all of Petitioner's arguments. The Court discusses Petitioner's principal arguments herein.
I. Ground One
“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) (“Greenholtz”). In some instances, however, state statutes may create liberty interests in parole release entitled to protection under the federal Due Process Clause. See Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Greenholtz, 442 U.S. at 12. The Ninth Circuit has held that California's statutory provisions governing parole create such a liberty interest. See Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010) (en banc), disapproved on other grounds, Swarthout v. Cooke, 562 U.S. 216 (2011).
In Swarthout v. Cooke, the Supreme Court did not reach the question of whether California law creates a liberty interest in parole, but observed that the Ninth Circuit's affirmative answer to this question “is a reasonable application of our cases.” Swarthout v. Cooke, 562 U.S. 216, 219-20 (2011) (citations omitted). The Ninth Circuit has held that Swarthout v. Cooke “did not disturb our conclusion that California law creates a liberty interest in parole.” Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir. 2011) (citation omitted).
“In the context of parole, . . . the procedures required are minimal.” Swarthout v. Cooke, 562 at 220. Due process requires that the State furnish a parole applicant with an opportunity to be heard and a statement of reasons for a denial of parole. Greenholtz, 442 U.S. at 16. “The Constitution does not require more.” Id.; accord Swarthout v. Cooke, 562 U.S. at 220 (citation omitted); Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir. 2011); see also Roberts v. Hartley, 640 F.3d at 1046 (“there is no substantive due process right created by the California's parole scheme”).
Petitioner received an opportunity to be heard and a statement of reasons for the denial of parole (see Respondent's Lodgment 3; Respondent's Lodgment 6 [California Supreme Court petition in S2657804], Ex. A, ECF Dkt. No. 10-6, pp. 42-137 [hearing transcript]). “The [federal] Constitution does not require more.” Greenholtz, 442 U.S. at 16.
The fact, if it is a fact, that some or all of the matters challenged by Petitioner constituted violations of state law would not entitle Petitioner to federal habeas relief. “Federal habeas will not lie for errors of state law.” Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts”) (original emphasis); Moor v. Palmer, 603 F.3d 658, 661 (9th Cir.), cert. denied, 562 U.S. 1049 (2010) (state parole board's alleged violation or misapplication of state law does not constitute any basis for federal habeas relief); see generally 28 U.S.C. § 2254(a).
Petitioner's allegations that the evidence was insufficient to support the Board's decision and/or that the Board weighed that evidence improperly and/or that the Board failed to give due weight to favorable evidence all fail to state any claim for federal habeas relief. See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37. The California Supreme Court has held, as a matter of state law, that “some evidence” must exist to support a parole denial. In re Lawrence, 44 Cal.4th 1181, 1212, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008); see also In re Shaputis, 53 Cal.4th 192, 221, 134 Cal.Rptr.3d 86, 265 P.3d 253 (2011) (in reviewing parole denial, court considers “whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness”). In Swarthout v. Cooke, however, the United States Supreme Court rejected the contention that the federal Due Process Clause contains a guarantee of evidentiary sufficiency with respect to a parole determination. Swarthout v. Cooke, 562 U.S. at 220-21 (“No opinion of ours supports converting California's ‘some evidence' rule into a substantive federal requirement.”); see also Miller v. Oregon Bd. of Parole, 642 F.3d 711, 717 (9th Cir. 2011) (issue is not whether Board's parole denial was “substantively reasonable, ” or whether the Board correctly applied state parole standards; issue is simply “whether the state provided Miller with the minimum procedural due process outlined in [Swarthout v.] Cooke”). Accordingly, Swarthout v. Cooke bars any challenge to the sufficiency of the evidence to support the Board's decision in Petitioner's case. See Roberts v. Hartley, 640 F.3d at 1046 (it “makes no difference that [the petitioner] may have been subjected to a misapplication of California's ‘some evidence' standard. A state's misapplication of its own laws does not provide a basis for granting a federal writ of habeas corpus.”); Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) (“[Swarthout v. Cooke] makes clear that we cannot consider whether ‘some evidence' of dangerousness supported a denial of parole on a petition filed under 28 U.S.C. § 2254.”); Robinson v. Hill, 2014 WL 4986619, at *2 (E.D. Cal. Oct. 6, 2014) (under Swarthout, federal habeas court could not review claim based on alleged lack of nexus between Board's denial of parole and petitioner's conduct); Cooper v. Chappell, 2012 WL 3309718, at *1 (N.D. Cal. Aug. 12, 2012) (same).
For the foregoing reasons, Petitioner is not entitled to federal habeas relief on Ground One of the Petition.
II. Ground Two
In Ground Two of the Petition, Petitioner contends that the Board denied him an “SB 266" hearing, an apparent reference to California Senate Bill 260, enacted in 2013 (see Petition, p. 5b; Traverse, p. 8 (referencing Senate Bill 260). In 2013, the California Legislature passed Senate Bill 260 in response to Miller v. Alabama, 567 U.S. 460 (2012) (“Miller”). In Miller, the Supreme Court held unconstitutional a mandatory sentence of life without the possibility of parole for a homicide committed when the defendant had been fourteen years old.Among other things, Senate Bill 260 enacted California Penal Code section 3051. Section 3051 generally provides that any individual serving a sentence imposed for a crime committed when the individual was under the age of twenty-five may obtain a “youth offender parole hearing.” Senate Bill 260 also amended California Penal Code section 4801, which generally provides that, in considering the parole eligibility of such an individual, the Board of Parole Hearings should “give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” See Cal. Penal Code § 4801(c).
Petitioner did not receive a mandatory sentence of life without the possibility of parole.
Petitioner contends that the Board did not provide Petitioner a proper youth offender parole hearing. Petitioner bases this contention on his allegation that, at the time of his November 7, 2019 hearing, implementing regulations promulgated pursuant to California Penal Code section 3051(e) were not yet in effect (see Petition, p. 5b; Traverse, pp. 7-8). Petitioner alleges only a violation of state law, for which federal habeas relief is unavailable. See Wilson v. Corcoran, 562 U.S. at 5; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas relief unavailable for alleged state law violations); Michal v. Borders, 2017 WL 6942434, at *2 (C.D. Cal. Dec. 11, 2017), adopted, 2018 WL 400746 (C.D. Cal. Jan. 11, 2018) (claim that Board failed adequately to weigh youth offender factors under Senate Bill 260 not cognizable on federal habeas review); Young v. Pfeiffer, 2017 WL 8021753, at *4 n.6 (C.D. Cal. Dec. 29, 2017), adopted, 2018 WL 1135452 (C.D. Cal. Feb. 26, 2018) (claim that Board failed to afford petitioner a youth offender parole hearing raises only an alleged violation of state law, not cognizable on federal habeas review).
Penal Code section 3051(e) provides, inter alia:
The board shall review and, as necessary, revise existing regulations and adopt new regulations regarding determinations of suitability made pursuant to this section, subdivision (c) of Section 4801, and other related topics, consistent with relevant case law, in order to provide that meaningful opportunity for release.The subject regulations, California Code of Regulations, Title 15, sections 2440-46, became effective on January 1, 2020.
At the hearing, the presiding commissioner stated that, because Petitioner committed his offense at the age of fifteen, the Board would “give great weight to youthful factors in deciding suitability for parole today” (Respondent's Lodgment 6 [California Supreme Court petition in S2657804], Ex. A, ECF Dkt. No. 10-6, p. 3 [hearing transcript]). At the conclusion of the hearing, prior to announcing the Board's decision, the presiding commissioner stated that the law required the Board to “give great weight to the mitigating effects of the diminished culpability of youths as compared to adults, the hallmark features of youth and the subsequent growth and maturity of [Petitioner] in reviewing his suitability for parole, given that he committed his commitment offense at the age of 15" (id., p. 88). The presiding commissioner also stated that, in making the decision, the Board had given great weight to “youthful offender factors that we found to be present, ” including: (1) the diminished capacity of youths; and (2) the immature development of Petitioner's brain at the time of the commitment offense, resulting in a lack of impulse control and an inability to plan ahead and to avoid risks (id., pp. 89-91).
Moreover, because success on this claim would not result in Petitioner's “immediate or speedier” release from confinement, this claim is not cognizable on federal habeas review. “Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004). Habeas corpus “is the exclusive remedy . . . for the prisoner who seeks ‘immediate or speedier release' from confinement.” Skinner v. Switzer, 562 U.S. 521, 525 (2011) (citation omitted). A challenge to the fact or duration of confinement which, if successful, would result in immediate or speedier release falls within the “core” of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 487-89 (1973); Nettles v. Grounds, 830 F.3d 922, 927-29 (9th Cir. 2016) (en banc), cert. denied, 137 S.Ct. 645 (2017). However, “if a state prisoner's claim does not lie at ‘the core of habeas corpus' [citation], it may not be brought in habeas corpus. . . .” Nettles v. Grounds, 830 F.3d at 931 (citation omitted). A civil rights action pursuant to 42 U.S.C. section 1983 action is the exclusive remedy for claims by state prisoners that do not “lie at the core of habeas corpus.” Id.
Petitioner's apparent contention that this purported limitation on federal habeas corpus violates the Suspension Clause (see Traverse, p. 3) is frivolous. The restriction of habeas relief to claims lying at the “core” of habeas corpus does not extinguish a federal court's jurisdiction over such “core” claims. See Felker v. Turpin, 518 U.S. 651 (1996) (statutory limitation on successive habeas petitions does not violate Suspension Clause). The rule of Nettles v. Grounds, that the civil rights statute provides the proper remedy for non-”core” constitutional claims, in no way constitutes a suspension of the writ of habeas corpus within the meaning of the Suspension Clause. See Bean v. Matteucci, 986 F.3d 1128, 1132 (9th Cir. 2021) (“Nettles is about a petitioner's obligation to satisfy the elements of his claim for habeas relief”).
Here, the relief Petitioner seeks on Ground Two of the Petition is a “youth offender” parole suitability hearing applying the regulations that became effective on January 1, 2020. Even if this Court ordered such a hearing, the relief would not necessarily result in a shorter period of confinement for Petitioner. Therefore, because the claim alleged in Ground Two of the Petition does not lie at the “core” of federal habeas corpus, Petitioner could not obtain federal habeas relief on this claim. See Richardson v. Board of Prison Hearings, 785 Fed. App'x 433, 434 (9th Cir. 2019) (success on petition challenging constitutionality of parole denial would not necessarily result in immediate release from prison but rather entitlement to a new parole hearing); Franklin v. Hill, 2021 WL 808861, at *2 (E.D. Cal. Mar. 3, 2021) (federal habeas court lacked jurisdiction to grant petitioner's request that Board reconsider parole denial); Chavez v. Davey, 2017 WL 5633032, at *1 (C.D. Cal. Nov. 20, 2017) (no federal habeas jurisdiction over claim that petitioner was entitled to hearing to create record of his “youthful, mitigating characteristics”; “the [Board] considers numerous factors unrelated to age when determining parole suitability”); see also Johnson v. Lozano, 2020 WL 959253, at *2 (C.D. Cal. Jan. 17, 2020), adopted, 2020 WL 949953 (C.D. Cal. Feb. 26, 2020) (no federal habeas jurisdiction where petitioner challenged constitutionality of California Penal Code section 3105; success on claim “would only entitle [petitioner] to a parole hearing, ” not release from confinement); Soun v. Arnold, 2017 WL 6039665, at *1 (N.D. Cal. Dec. 6, 2017) (federal habeas court lacks jurisdiction over challenge to section 3051, because such challenge lies “outside the core of habeas corpus”) (citation and quotations omitted); Woods v. Matzen, 2017 WL 10545384, at *2-3 (C.D. Cal. Aug. 11, 2017) (same); Glass v. Kernan, 2017 WL 2296960, at *2-3 (C.D. Cal. Apr. 19, 2017), adopted, 2017 WL 2296963 (C.D. Cal. May 23, 2017) (same).
The Court should decline to exercise its discretion to convert any portion of the present Petition into a civil rights complaint. “[A] habeas corpus action and a prisoner civil rights suit differ in a variety of respects - such as . . . filing fees, the means of collecting them, and restrictions on future filings - that may make recharacterization impossible or, if possible, disadvantageous to the prisoner compared to a dismissal without prejudice of his petition for habeas corpus.” Nettles v. Grounds, 830 F.3d at 935-36 (citations and internal quotations omitted); see also id. at 932 n.8 (describing differences between procedural requirements applicable to habeas corpus actions and to civil rights actions). Accordingly, conversion of the Petition into a civil rights complaint would be inappropriate. See Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (court relied on myriad differences between habeas actions and civil rights actions in affirming district court's refusal to recharacterize a habeas petition as a civil rights complaint); Jorgenson v. Spearman, 2016 WL 2996942, at *1 (C.D. Cal. May 22, 2016) (declining to convert a flawed habeas petition into a civil rights complaint “in light of the considerable procedural and substantive differences between habeas corpus and civil rights matters”).
Furthermore, “a claim for violation of state law is not cognizable under § 1983.” Cornejo v. County of San Diego, 504 F.3d 853, 855 n.2 (9th Cir. 2007) (citation omitted); see also Parratt v. Taylor, 451 U.S. 527, 535 (1982), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Thus, because Plaintiff's allegations of California law violations would fail to state a federal civil rights claim, any conversion of the Petition to a civil rights action would be futile. See Rutledge v. Lassen County Jail, 2021 WL 1062560, at *2 (E.D. Cal. Feb. 12, 2021), adopted, 2021 WL 1209742 (E.D. Cal. Mar. 31, 2021) (declining to convert habeas action to civil rights action where plaintiff failed to allege any cognizable claim); Yocom v. Allison, 2021 WL 215653, at *5 (E.D. Cal. Jan. 21, 2021), adopted, 2021 WL 4480564 (E.D. Cal. Sept. 30, 2021) (no conversion where, inter alia, petitioner alleged only state law violation).
For the foregoing reasons, Petitioner is not entitled to federal habeas relief on Ground Two of the Petition.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.