Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable George H. King, Chief 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
On February 8, 2012, Petitioner filed a "Petition Under 28 USC § 2254 for Writ of Habeas Corpus By a Person in State Custody" in the United States District Court for the Eastern District of California. On February 16, 2012, the United States District Court for the Eastern District of California transferred the Petition to this Court.
On August 14, 2012, Respondent filed an Answer, asserting: (1) the Petition is untimely; (2) Grounds Six and Seven of the Petition are unexhausted; and (3) Grounds One, Three, Four, Six and Seven of the Petition are not cognizable on federal habeas review. On September 27, 2012, Petitioner filed a Reply.
On November 25, 2012, the Court ordered Ground Six of the Petition denied and dismissed with prejudice, and Ground Seven of the Petition denied and dismissed without prejudice. See Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, entered November 27, 2012. At the same time, the Court ordered Respondent to file a Supplemental Answer addressing the merits of Grounds One through Five of the Petition (id.).
On April 12, 2013, Respondent filed a Supplemental Answer. On August 9, 2013, Petitioner filed a Reply to Respondent's Supplemental Answer.
BACKGROUND
On March 21, 1991, Petitioner pled guilty to first degree murder pursuant to a plea agreement (Reporter's Transcript ["R.T."] 9-11; Clerk's Transcript ["C.T."] 1909). Petitioner waived his right to a probation report and a continuance of sentencing (R.T. 9-10). The court imposed a sentence of thirty-three years to life (R.T. 10-11; C.T. 1909). The court also ordered the preparation of a probation report "to follow the defendant pursuant to the provisions of Section 1203 of the Penal Code." (R.T. 11). The probation report bears a dictation/transcription date of May 16, 1991, a received date of May 20, 1991, and a state court filing date of May 24, 1991 (see "Petitioner's Confidential Probation Report, " filed under seal on August 16, 2012). Attached to the probation report is a letter to the probation officer from the prosecuting deputy district attorney, Patrick J. McKinley. This letter, dated May 16, 1991, describes McKinley's views of the crime and expresses the hope that the letter would be made part of the probation report so that any future parole authority would be aware of Petitioner's allegedly false testimony at the trial of a co-perpetrator. The letter opines that Petitioner "probably should never be released from prison."
The Court of Appeal affirmed the judgment on April 2, 1992 (Respondent's Lodgment 6). Petitioner did not file a petition for review.
On September 9, 2010, a panel of the California Board of Parole Hearings ("Board") convened for Petitioner's initial parole suitability hearing (see Respondent's Lodgment 33, Ex. A-1). Petitioner did not attend the hearing, although his attorney was present (id., pp. 104-05). The Board continued the hearing because documents were missing from Petitioner's "packet" and Petitioner had not received the Board report ten days prior to the hearing (see Respondent's Lodgment 33, Ex. A-1, pp. 104-05). The Board allowed a deputy district attorney, Michael Carrozzo, to submit a 26-page document consisting of pages from a book entitled "A Death in Santa Barbara, " purportedly describing two interviews Petitioner allegedly gave concerning the crime (id., p. 107). The Presiding Commissioner said the Board would incorporate the document into Petitioner's central file (id.).
Transcripts of the two Board hearings at issue are attached to Petitioner's California Supreme Court habeas corpus petition, case number S195647 (Respondent's Lodgment 33).
On October 29, 2010, Petitioner appeared before the Board for the continued initial parole suitability hearing (see Exhibits included in Respondent's Lodgment 33). The Board denied parole for seven years (id., pp. 231-46).
Thereafter, Petitioner filed various habeas corpus petitions in the Santa Barbara Superior Court, the Kings County Superior Court, the California Court of Appeal, and the California Supreme Court, all of which were denied (Respondent's Lodgments 11-20, 24-27, 33, 35-37).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The Santa Barbara Superior Court allegedly abused its discretion and judicial powers by rejecting Petitioner's claim that the trial court allowed Petitioner to enter into a plea agreement "which was prior to sentencing in default as revealed by the conditional statement made and dated letter attached to the probation officer's report" (Ground One);
2. The State allegedly breached a purported provision of the plea agreement supposedly providing that the District Attorney's Office would submit a letter supporting Petitioner's release on parole, because at the parole hearing Mr. Carrozzo described Mr. McKinley's 1991 letter in opposition to Petitioner's parole (Ground Two);
3. The Santa Barbara Superior Court allegedly erred in rejecting Petitioner's habeas petition while supposedly knowing that the plea agreement "could be interpreted that Petitioner would be granted parole in compliance with the law"; the Board applied Marsy's Law to Petitioner to deny parole for seven years, assertedly causing Petitioner's sentence to exceed that provided by law (Ground Three);
It is unclear to which Santa Barbara Superior Court petition this claim refers.
4. The Santa Barbara Superior Court and the California Court of Appeal allegedly violated Petitioner's constitutional rights "by denying Petitioner's writ claiming Petitioner made claims not in record"; these courts allegedly unlawfully rejected Petitioner's claim that the Board violated Due Process by allowing Mr. Carrozzo to submit documents about which Petitioner assertedly had no knowledge until approximately 50 days later, at a hearing at which Petitioner allegedly was not present and at which Petitioner's counsel allegedly was present only to request a postponement (Ground Four); and
5. The Board allegedly violated the constitution and Board protocol by allowing Mr. Carrozzo to submit twenty-six pages of a book into Petitioner's file, assertedly without Petitioner's knowledge (Ground Five).
STANDARD OF REVIEW
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), as amended by the "Anti-Terrorism and Effective Death Penalty Act of 1996" ("AEDPA"); 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).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher , 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade , 538 U.S. 63 (2003). Only United States Supreme Court precedent can constitute "clearly established Federal law" within the meaning of section 2254; "circuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court'" and "therefore cannot form the basis for habeas relief...." Parker v. Matthews , 132 S.Ct. 2148, 2155 (2012).
A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer , 537 U.S. at 8 (citation omitted); Williams v. Taylor , 529 U.S. at 405-06. Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade , 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti , 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor , 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith , 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad , 555 U.S. 179, 190 (2009); Davis v. Woodford , 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter , 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id . (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
In applying these standards, the Court looks to the last reasoned state court decision on the claim or claims presented. See DeWeaver v. Runnels , 556 F.3d 995, 997 (9th Cir.), cert. denied, 558 U.S. 868 (2009). Where there exists only a summary denial of a claim, "a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter , 131 S.Ct. at 786; accord Cullen v. Pinholster , 131 S.Ct. 1388, 1403 (2011).
The Court assumes arguendo the timeliness of Petitioner's claims. See Van Buskirk v. Baldwin , 255 F.3d 974, 976 (9th Cir.), amended and superseded on other grounds, 265 F.3d 1080 (9th Cir. 2001), cert. denied, 535 U.S. 950 (2002) (declining to address statute of limitations issue where habeas petition lacked merit).
I. Grounds One and Two of the Petition Do Not Entitle Petitioner to Federal Relief.
Grounds One and Two of the Petition challenge the validity of Petitioner's plea and resulting conviction. In Ground One, Petitioner alleges that the trial court allowed Petitioner to enter into a plea agreement on March 21, 1991, while assertedly knowing that the agreement supposedly already was "in default" because the prosecutor, Mr. McKinley, allegedly had authored or intended to author the May, 1991 letter opposing parole for Petitioner. Ground Two of the Petition alleges that the State breached a purported provision of the plea agreement supposedly providing that the District Attorney's Office would submit a letter supporting Petitioner's release on parole.
Petitioner raised Ground Two in a habeas petition filed in the Santa Barbara Superior Court on July 26, 2011 (Respondent's Lodgment 16). The Santa Barbara Superior Court rejected Ground Two as based on a "self-serving, conclusory statement" which was directly contradicted by Petitioner's own statements made at the time he entered the plea. See Respondent's Lodgment 17 at 3-4. Petitioner raised Grounds One and Two in a habeas petition filed with the California Supreme Court on September 19, 2011 (Respondent's Lodgment 36), which that court summarily denied (Respondent's Lodgment 37).
For the reasons discussed below, Grounds One and Two do not merit habeas relief.
A. Relevant Trial Court Proceedings
The charge against Petitioner carried a possible sentence of death or life without the possibility of parole. See C.T. 1766-69 (Information). As the case neared trial, the prosecution advised that it would be seeking the death penalty against Petitioner. See C.T. 1774; C.T. 1884. On March 19, 1991, however, Petitioner's counsel filed a declaration informing the trial court that the district attorney's office had decided to dismiss the special allegations against Petitioner, and that Petitioner was prepared to enter a "no contest" plea to the remaining charges (C.T. 1905; see also C.T. 1910-11; R.T. 2).
On March 21, 1991, Petitioner entered a guilty plea and received an immediate sentence of thirty-three years to life in state prison (C.T. 1909; R.T. 1-12). In entering his plea, Petitioner waived his rights on the record (R.T. 3-9), and completed and signed a written "Waiver of Constitutional Rights and Plea of Guilty or No Contest'" form (C.T. 1912-20), acknowledging inter alia:
I understand that the courts and the Legislature have approved plea bargaining. However, it is absolutely necessary that all plea agreements, promises of a particular sentence(s) or sentence recommendation(s) be completely disclosed to the court on this form, and that any understanding not so disclosed on this form cannot be asserted at some later time.... ¶ I offer my plea... freely and voluntarily with a full understanding.... No one has made any... promises except as set out on this form in order to convince me to plead guilty or no contest.
(C.T. 1919 (emphasis original)). Petitioner's counsel also signed a section acknowledging that, "No promises of particular sentence or sentence recommendation have been made by me or, to my knowledge, by the prosecuting attorney or the court which has not been fully disclosed in this form" (C.T. 1920). The form contained no mention of any alleged promise that Petitioner would receive parole or any alleged promise that the prosecution would support parole for Petitioner. See C.T. 1912-20. Petitioner also orally represented to the court at the time he entered his plea that no undisclosed promises had been made to him (R.T. 8). The trial court then found Petitioner's plea waiver knowing and voluntary, and the court accepted the plea (R.T. 9). Petitioner waived his right to a probation report, and requested and received immediate sentencing (R.T. 9-11). Pursuant to state law, however, the court did order the preparation of a probation report (R.T. 11). As mentioned above, the probation report later prepared included a May, 1991 letter from the prosecutor opining that Petitioner probably should not be paroled in the future. See Letter submitted with "Petitioner's Confidential Probation Report, " filed under seal August 16, 2012.
B. Analysis
When a guilty plea rests in any significant degree on an agreement with the government, the agreement must be fulfilled. Santobello v. New York , 404 U.S. 257, 262 (1971); Gunn v. Ignacio , 263 F.3d 965, 969 (9th Cir. 2001). The party asserting breach bears the burden of proving the underlying facts establishing a breach. See United States v. Laday , 56 F.3d 24, 26 (5th Cir. 1995); see also United States v. Packwood , 848 F.2d 1009, 1011 (9th Cir. 1988). "Plea agreements are contractual in nature and are measured by contract law standards." Brown v. Poole , 337 F.3d 1155, 1159 (9th Cir. 2003) (citation and quotations omitted).
In determining the intent of the parties respecting the terms of a plea agreement, "the relevant intent is objective, ... not a party's subjective intent." Buckley v. Terhune , 441 F.3d 688, 695 (9th Cir. 2006), cert. denied, 550 U.S. 913 (2007) (citations and quotations omitted). A defendant's representations on the record, as well as any findings made by the trial court, constitute a "formidable barrier" in a collateral challenge. Blackledge v. Allison , 431 U.S. 63, 74 (1977). "Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Id . (citations omitted); see also Muth v. Fondren , 676 F.3d 815, 821-22 (9th Cir.), cert. denied, 133 S.Ct. 292 (2012) (discussing same).
Petitioner contends that he entered into the plea with an "understanding" that the prosecutor would "include a letter in favor of Petitioner's release for future [parole] board hearings." See Petition, Ground Two; see also Respondent's Lodgment 16, 36. Petitioner claims that he first learned the prosecutor did not include such a letter when Petitioner appeared for his initial parole suitability hearing in 2010. (Id.).
Contrary to Petitioner's conclusory allegations, neither the written plea agreement (which Petitioner signed) nor the transcript of the plea proceedings supports Petitioner's claims. Rather, the written plea agreement and the transcript of the plea tend to refute those claims. The state courts were not unreasonable in concluding Petitioner failed to prove the existence of any promise that Petitioner would receive parole or that the prosecutor would support Petitioner's parole. See Blackledge v. Allison , 431 U.S. at 73-74; Muth v. Fondren , 676 F.3d at 821-22; see generally Turner v. Calderon , 281 F.3d 851, 881 (9th Cir. 2002) ("self-serving statement" insufficient to raise claim for relief); James v. Borg , 24 F.3d 20, 26 (9th Cir.), cert. denied, 513 U.S. 935 (1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.").
The state courts' rejection of Grounds One and Two was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. Nor was the rejection based on an unreasonable determination of the facts in light of the evidence presented in the state proceedings. Accordingly, Petitioner is not entitled to habeas relief on Ground One or Ground Two. See 28 U.S.C. § 2254(d).
II. Ground Three Does Not Entitle Petitioner to Habeas Relief.
In Ground Three, Petitioner alleges that the Board improperly applied "Marsy's Law" to deny parole consideration for seven years. Petitioner claims that "Marsy's law, " which was enacted in 2008, cannot apply to him.
Prior to "Marsy's Law, " when the Board deemed an inmate serving a life sentence for murder unsuitable for parole, the Board would conduct a subsequent parole hearing one year later, except the Board could defer the subsequent hearing up to five years if the Board found that it was not reasonable to expect that parole would be granted sooner. See former Cal. Penal Code § 3041.5(b)(2). "Marsy's Law" increased the maximum deferral period to fifteen years and also provided for a presumptive deferral period of ten years unless the Board "finds by clear and convincing evidence that the [statutory] criteria relevant to the setting of parole release dates... are such that consideration of the public and victim's safety do not require a more lengthy period of incarceration...." See Cal. Penal Code § 3041.5(b)(3)(B). As previously indicated, the Board imposed a seven-year deferral period on Petitioner.
To the extent Petitioner is asserting that the application of "Marsy's Law" to him violates the Ex Post Facto Clause, relief must be denied. It appears that Petitioner is a class member in a class action concerning "Marsy's Law" presently pending in the United States District Court for the Eastern District of California, Gilman v. Schwarzenegger, Civ. S 05-830 LKK GGH ("Gilman"). As discussed below, the present Petition is the equivalent of a suit for injunctive and equitable relief which cannot be brought where there exists a pending class action concerning the same subject matter. See Crawford v. Bell , 599 F.2d 890, 892-93 (9th Cir. 1979) (district court may dismiss individual plaintiff's action where plaintiff is member of a pending class action raising the same claims); see also McNeil v. Guthrie , 945 F.2d 1163, 1165 (10th Cir. 1991); Gillespie v. Crawford , 858 F.2d 1101, 1103 (5th Cir. 1988) (en banc).
The Court takes judicial notice of the docket and records in Gilman, available on the PACER database. See Mir v. Little Company of Mary Hosp. , 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records).
The Gilman plaintiffs allege, among other things, that the provisions of "Marsy's Law" extending deferral periods violate the Ex Post Facto Clause. See Gilman v. Schwarzenegger , 638 F.3d 1101, 1103 (9th Cir. 2011). On February 4, 2010, the District Court in Gilman granted a preliminary injunction enjoining the defendants from enforcing the deferral period provisions of "Marsy's Law" as to the named Plaintiffs. See Gilman v. Schwarzenegger, 690 F.Supp.2d 1105 (E.D. Cal. 2010), rev'd, 638 F.3d 1101 (9th Cir. 2011). On January 24, 2011, the Ninth Circuit reversed, holding that the plaintiffs had failed to show a likelihood of success on the merits of this claim. See Gilman v. Schwarzenegger , 638 F.3d at 1101.
The retroactive application of a change in state parole procedures violates the Ex Post Facto Clause only if there exists a "significant risk" that such application will increase the punishment for the crime. See Garner v. Jones , 529 U.S. 244, 259 (2000). For the reasons the Ninth Circuit found in Gilman v. Schwarzenegger , 638 F.3d at 1109-11, that an ex post facto challenge to the amendment was unlikely to succeed, it may be that retroactive application of the 2008 amendment to section 3041.5 ("Marsy's Law") would entail no such "significant risk." As the Ninth Circuit explained, because the amendment gives the Board discretion to advance parole suitability hearings whenever circumstances warrant, the amendment does not create a "significant risk" of prolonging prisoners' incarceration. Id .; see also Cal. Penal Code § 3041.5(b)(4), (d)(1) (providing that the Board may advance a hearing date upon an inmate's request). The same reasoning applies in the present case. See Santos v. Gonzales, 2013 WL 2394983, at *3 (C.D. Cal. May 29, 2013) (following Gilman in denying ex post facto claim); Lucero v. Wong, 2011 WL 5834963, at *3-4 (N.D. Cal. Nov. 21, 2011) (same); Woods v. Gonzalez, 2011 WL 4831191, at *3-4 (N.D. Cal. Oct. 12, 2011) (same); Petrich v. Marshall, 2011 WL 322001, at *10 (C.D. Cal. Jan. 27, 2011)
Petitioner appears to be a member of the plaintiff class in Gilman. On March 4, 2009, the Gilman Court certified a class of all California state prisoners currently serving sentences that include life with the possibility of parole who have been denied parole on one or more occasions. See Gilman v. Schwarzenegger, 2009 WL 577767 (E.D. Cal. Mar. 4, 2009), aff'd, 382 Fed.App'x 544 (9th Cir. 2010). On September 15, 2010, the Gilman court denied a number of inmates' motions to intervene (Docket Entry 270). The Gilman Court advised the moving parties that if they are members of the Gilman class they may not maintain separate, individual suits for equitable relief involving the same subject matter as the class action.
The Gilman docket also reflects that, on April 6, 2011, the District Court held an evidentiary hearing on the plaintiffs' motions for a preliminary injunction and to amend the class definition (Docket Entry 334). On April 25, 2011, the District Court in Gilman amended the definition of the certified class to provide, as to the ex post facto challenge to the deferral periods, that the class is "all California state prisoners who have been sentenced to a life term with the possibility of parole for an offense that occurred before November 4, 2008" (Docket Entry 340). On April 5, 2012, the Court denied the Gilman plaintiffs' motion for a preliminary injunction. On May 7, 2013, the Gilman Court denied the parties' cross motions for summary judgment, and denied a motion to decertify the remaining classes (Docket Entry 479). A four day bench trial concluded on July 2, 2013, with briefing due in September and October 2013, when the matter will stand submitted (Docket Entry 511).
Because Petitioner received a 1991 sentence of thirty-three years to life for murder, Petitioner plainly appears to be a member of the Gilman class. The District Court certified the class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, which does not generally afford a class member "opt-out rights." See Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541, 2559 (2011); Ticor Title Ins. C. v. Brown , 511 U.S. 117, 121 (1994).
Any claim that application of the extended deferral period of "Marsy's Law" to Petitioner violates the Ex Post Facto Clause involves the same subject matter as the Gilman plaintiffs' ex post facto challenge to the "Marsy's Law" deferral periods. See Gilman v. Schwarzenegger , 638 F.3d at 1106 (stating that, to prevail on their ex post facto challenge to the "Marsy's Law" deferral periods, plaintiffs must show either that the statute, on its face, created a significant risk of increasing the punishment of California life inmates, or that, in its practical implementation, the statute's retroactive application will result in a longer period of incarceration than under prior law) (citation omitted). Therefore, any ex post facto challenge to "Marsy's Law" contained in the present Petition should be dismissed without prejudice. See Crawford v. Bell , 599 F.2d at 892-93; see also Phinney v. Salinas, 2012 WL 2401573, at *5 (E.D. Cal. June 25, 2012) (dismissing habeas challenge to deferral periods enacted by "Marsy's Law" because petitioner was a member of Gilman class); De Leon v. Hartley, 2011 WL 2143518, at *8-9 (E.D. Cal. May 31, 2011) (same); Brown v. Clark, 2011 WL 2144237, at *6-7 (E.D. Cal. May 31, 2011) (same).
To the extent Petitioner may be claiming that he should have been granted parole because his plea agreement "could be interpreted" that he would be granted parole "in compliance with the law" when he reached the length of time provided in the matrix of base terms set forth in the California Code of Regulations (see Respondent's Lodgment 33 at pp. 4, 11), Petitioner's claim fails. The state courts reasonably determined Petitioner failed to prove that his plea agreement provided he would be granted parole. No such agreement appears in the written plea agreement or on the record of the plea proceedings. Petitioner acknowledged at the time he entered his plea that he would be getting "an assured sentence" "from 33 years to life" (R.T. 6). Petitioner declared orally and in writing that no undisclosed promises had been made to him (R.T. 8; C.T. 1919). Petitioner's declarations at the time he entered the plea preclude habeas relief on any unsupported assertion to the contrary. See Blackledge v. Allison , 431 U.S. 63, 73-74 (1997); Muth v. Fondren , 676 F.3d 815, 821-22 (9th Cir.), cert. denied, 133 S.Ct. 292 (2012).
Petitioner's invocation of the matrix of base terms does not alter the Court's analysis. The Board is not required to consider the matrix, or principles of proportionality or uniformity, until after the Board deems an inmate suitable for parole. See Cal. Code Regs., tit. 15 § 2282(a); In re Dannenberg , 34 Cal.4th 1061, 1091-94, 23 Cal.Rptr.3d 417, cert. denied, 546 U.S. 844 (2005), abrogated in part, In re Lawrence , 44 Cal.4th 1181, 1205-06, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008); see also Sass v. Calif. Bd. of Prison Terms , 461 F.3d 1123, 1132 (9th Cir. 2006), overruled in part on other grounds, Hayward v. Marshall , 603 F.3d 546, 555 (9th Cir. 2010) ("The matrix is intended to ensure sentencing uniformity among those who commit similar crimes. [citation]. Such considerations are, of course, inapplicable in the case of prisoners deemed unsuitable for parole. [citation]."); Ramos v. Kane, 2007 WL 1232052, at *4 (N.D. Cal. Apr. 26, 2007) ("going straight to the matrix to calculate the sentence puts the cart before the horse because it ignores critical language in the relevant statute and regulations that requires the prisoner first to be found suitable for parole"). Because the Board did not find Petitioner suitable for parole, the Board was not required to use the matrix, or principles of proportionality or uniformity, to determine a base term. See, e.g., Ramos v. Kane, 2007 WL 1232052, at *4; Wilder v. Dickinson, 2011 WL 1131491, at *4 (C.D. Cal. Feb. 10, 2011), adopted, 2011 WL 1118954 (C.D. Cal. Mar. 22, 2011); Smith v. Finn, 2007 WL 214597, at *8 (E.D. Cal. Jan. 25, 2007), adopted, 2007 WL 3151673 (E.D. Cal. Oct. 26, 2007); Fernandez v. Kane, 2006 WL 3041083, at *5, *9 (N.D. Cal. Oct. 24, 2006).
To the extent Petitioner may be asserting that the Board violated California law by failing to consider the matrix or in making its parole suitability determination (Petition, p. 4(g)), Petitioner is not entitled to habeas relief. 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). Mere errors in the application of state law are not cognizable on federal habeas review. Wilson v. Corcoran , 131 S.Ct. 13, 16 (2010) ("we have repeatedly held that federal habeas corpus relief does not lie for errors of state law") (citations and internal quotations omitted); Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). "A state's misapplication of its own laws does not provide a basis for granting a federal writ of habeas corpus." Roberts v. Hartley , 640 F.3d 1042, 1046 (9th Cir. 2011) (citation omitted). A federal habeas court is not authorized "to reevaluate California's application of its rules for determining parole eligibility." Id . (citation omitted).
For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground Three.
III. Petitioner's Due Process Claims with Respect to His 2010 Parole Denial Do Not Entitle Petitioner to Habeas Relief.
In Grounds Four and Five, Petitioner claims that he was denied due process related to his initial parole suitability hearing, when the Board allowed the district attorney to submit documents outside of Petitioner's presence. See Petition, Grounds Four and Five. Petitioner raised these claims in his habeas petition filed with the California Supreme Court on August 12, 2011 (Respondent's Lodgment 33), which that court denied summarily (Respondent's Lodgment 35).
As mentioned above, when the matter was called for the initial hearing, Petitioner had not received the Board report ten days prior to the hearing (see Respondent's Lodgment 33, Ex. A-1, pp. 104-05). Petitioner did not attend the initial hearing, although his attorney was present (id., pp. 104-05). In addition to continuing the hearing, the Board allowed a deputy district attorney, Michael Carrozzo, to submit a 26-page document consisting of pages from a book entitled "A Death in Santa Barbara, " purportedly describing two interviews Petitioner allegedly gave concerning the crime (id., p. 107). The Presiding Commissioner said the Board would incorporate the document into Petitioner's central file (id.).
Petitioner contends that the Board's acceptance of documents outside of Petitioner's presence violated Board "hearing protocol, " denying Petitioner an opportunity to object (Petition, Ground Five; see also Respondent's Lodgment 33, pp. 6-7). Petitioner alleges he knew nothing about the action until the follow up hearing (Respondent's Lodgment 33, pp. 6-7). As explained below, the United States Supreme Court's decision in Swarthout v. Cooke , 131 S.Ct. 859 (2011) ("Swarthout") precludes granting federal habeas relief on this claim.
"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 , 131 S.Ct. 859 (2011).
In Swarthout, 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 , 131 S.Ct. at 861-62 (citations omitted).
"In the context of parole, ... the procedures required are minimal." Swarthout , 131 S.Ct. at 862. 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 , 131 S.Ct. at 862 (citation omitted); see also Roberts v. Hartley , 640 F.3d 1042, 1046 (9th Cir. 2011) ("there is no substantive due process right created by the California's parole scheme"). Petitioner was not denied any of these required procedural safeguards. See Respondent's Lodgment 33, Exhibit A-1 (transcript of hearing and Board's decision). Accordingly, Petitioner's due process claim fails.
The apparently unexhausted claim in Petitioner's Reply to Respondent's Supplemental Answer that Petitioner's counsel was constitutionally ineffective for failing to object to the submission of the book excerpts at the parole hearing fails for the same reasons. Petitioner received all of the constitutional process due to him in the parole proceedings. See Dorado v. Kerr , 454 F.2d 892, 896-97 (9th Cir.), cert. denied, 409 U.S. 934 (1972) (no constitutional right to counsel at parole consideration hearings); Villagrana v. Diaz, 2012 WL 4210308, at *4 (E.D. Cal. Sept. 19, 2012) ("there is no clearly established right to counsel at parole suitability hearings"); see also Cassett v. Stewart , 406 F.3d 614, 623-24 (9th Cir. 2055), cert. denied, 546 U.S. 1172 (2006) (federal habeas court may deny on the merits an unexhausted claim that is not colorable).
To the extent Petitioner is challenging the Board's actions in his case as violating California Board "protocol, " the interpretation of California state law criteria applicable to California's parole system presents a matter of state law not cognizable in this federal habeas proceeding. See Swarthout , 131 S.Ct. 859, 863 (2011) ("[T]he responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, and is no part of the Ninth Circuit's business."); Roberts v. Hartley , 640 F.3d at 1047 (federal habeas court is not authorized "to reevaluate California's application of its rules for determining parole eligibility") (citation omitted); see generally Wilson v. Corcoran , 131 S.Ct. 13, 16 (2010) ("we have repeatedly held that federal habeas corpus relief does not lie for errors of state law") (citations and internal quotations omitted); Estelle v. McGuire , 502 U.S. 62, 67-68 (1991).
For these reasons, Petitioner is not entitled to habeas relief on Grounds Four and Five. Petitioner has not shown that the state courts' rejection of these grounds was contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. Petitioner is not entitled to habeas relief on Grounds Four and Five. See 28 U.S.C. § 2254(d).
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying and dismissing Ground Three of the Petition without prejudice to the extent that Ground Three alleges an ex post facto claim; and (3) denying and dismissing with prejudice all other claims in the Petition not previously adjudicated in this Court's "Order Accepting Findings, etc., " filed November 25, 2012.
In light of this recommended disposition, Petitioner's request for an evidentiary hearing is denied. Where, as here, the state courts adjudicated the claims on the merits and such adjudication was not "unreasonable" under section 2254(d), habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present for the first time in federal court. See Cullen v. Pinholster , 131 S.Ct. 1388, 1400 (2011) ("if a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court, " even where the state court denied the petition summarily) (footnote omitted) ("Pinholster"); Gulbrandson v. Ryan , 711 F.3d 1026, 1042 n.5 (9th Cir. 2013) (Pinhoster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as to section 2254(d)(1) claims). Moreover, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to Petitioner's claims.