Jeffrey Gray v. D. Runnels ( 2011 )

FILED
NOT FOR PUBLICATION JUN 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEFFERY DEE GRAY *, No. 09-15635
Petitioner - Appellant, D.C. No. 4:05-cv-05394-PJH
v.
MEMORANDUM **
D. L. RUNNELS, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted June 15, 2011 ***
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
California state prisoner Jeffery Dee Gray appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.
Gray essentially contends that his lawyer’s prediction that he would be
*
The docket is hereby corrected to reflect the proper spelling of
appellant’s name, Jeffery Dee Gray.
*
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
paroled within six to ten years of his 1990 guilty plea was an enforceable part of
his plea agreement that was breached by the Board of Prison Terms’s (“Board”)
denial of parole in 2001. He also contends that his plea agreement was either void
or voidable on principles of state contract law, in light of the state’s shift towards a
practice of granting parole in murder cases only rarely. Gray did not seek a
certificate of appealability (“COA”) because, at the time of his notice of appeal, it
was not yet established as a matter of circuit law that a COA was required in cases
challenging the denial of parole. See Hayward v. Marshall, 603 F.3d 546 (9th Cir.
2010) (en banc), overruled in other respects by Swarthout v. Cooke, 131 S. Ct. 859(2011) (per curiam).
In order for a COA to issue under 28 U.S.C. § 2253(c), it must be the case
that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right . . . .” Slack v. McDaniel, 529 U.S. 473,
478 (2000). Given the terms of Gray’s unambiguous oral plea agreement, the state
court's decision rejecting his claims was neither contrary to nor an objectively
unreasonable application of Santobello v. New York, 404 U.S. 257, 262 (1971).
See Brown v. Poole, 337 F.3d 1155, 1159-60 & n.2 (9th Cir. 2003) (recognizing
federal due process right to enforcement of oral plea agreement but noting that
terms of an unambiguous oral agreement may not be contradicted by parol
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evidence). Moreover, Gray has pointed to no case supporting the proposition that
his various arguments grounded in principles of state contract law give rise to a
violation of federal law. See 28 U.S.C. § 2254(a). Accordingly, we dismiss the
appeal. See 28 U.S.C. § 2253(c)(2).
DISMISSED.
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