(HC) Young v. Pfeiffer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HOWARD YOUNG, Case No. 1:18-cv-01339-DAD-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS 14 C. PFEIFFER, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent. ECF No. 24 16 ORDER DENYING OUTSTANDING MOTIONS 17 ECF Nos. 28, 29, 30, 36 18 ORDER DISMISSING MOTION TO RULE 19 ON PENDING MOTIONS AS MOOT 20 ECF No. 40 21 22 Petitioner Howard Young, a state prisoner without counsel, petitions for a writ of habeas 23 corpus under 28 U.S.C. § 2254. ECF No. 1. He seeks relief from a 2017 denial of parole. Id. 24 Respondent moves for dismissal, arguing that petitioner did not exhaust his state-level remedies 25 on one of his claims and that other claims are non-cognizable. ECF No. 24. Following 26 respondent’s motion, petitioner has twice moved to amend his petition, has requested leave to 27 conduct discovery, and has asked the court to appoint counsel and to rule on all pending motions. 28 1 ECF Nos. 29, 36, 28, 30, 40. For the reasons below, we find that petitioner exhausted his claims 2 at the state level. However, because all of his claims either lack merit or are not cognizable, we 3 recommend granting respondent’s motion to dismiss; we deny all remaining motions. 4 I. Background 5 Petitioner seeks a writ of habeas corpus, claiming that (1) his parole board hearing 6 violated his due process rights; (2) his Sixth Amendment right to counsel was violated when he 7 was not provided counsel before the parole board; (3) the parole board’s failure to take his mental 8 health into account violated his Eighth Amendment right to be free from cruel and unusual 9 punishment; (4) the denial of transitional housing and reentry programs and the application of 19 10 mandatory points violated his constitutional rights; (5) the parole board hearing violated his right 11 to equal protection under the Fourteenth Amendment; and (6) application of California’s “some 12 evidence” standard violated his constitutional rights. ECF No. 1. 13 Respondent seeks dismissal, arguing that four of the petitioner’s claims—due process 14 before the parole board, right to counsel before the parole board, freedom from cruel and unusual 15 punishment in parole suitability determinations, and denial of access to transitional housing and 16 reentry programs—are not cognizable on federal habeas review. See ECF No. 24. Respondent 17 does not address petitioner’s remaining two claims: violation of his right to equal protection 18 before the parole board and wrongful application of California’s “some evidence” standard. 19 II. Discussion 20 Under Rule 2(c) of the Rules Governing Section 2254 Cases, habeas petitioners must 21 “specify all the grounds for relief available to [him]” and “state the facts supporting each 22 ground.” See Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990) (requiring that habeas 23 petitioner state his claims with sufficient specificity). This court may dismiss a deficient habeas 24 petition at various stages. “If it plainly appears from the petition and any attached exhibits that 25 the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and 26 direct the clerk to notify the petitioner.” R. Governing § 2254 Cases 4. The court may dismiss a 27 petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the 28 respondent’s motion to dismiss, or after an answer has been filed. See id. 8 advisory comm. note. 1 In this case, defendant has filed a motion seeking dismissal of four of petitioner’s six claims and 2 has yet to file an answer. We will consider petitioner’s two remaining claims on our own motion. 3 See id. 4 A. Failure to Exhaust 5 We first consider whether petitioner has met the exhaustion requirement. When a habeas 6 petitioner has presented the state court with the factual and legal bases of his claim, the state court 7 has had sufficient opportunity to hear an issue. See Weaver v. Thompson, 197 F.3d 359, 364 (9th 8 Cir. 1999); Kyzar v. Ryan, 780 F.3d 940, 947 (9th Cir. 2015) (“In order to fairly present an issue 9 to a state court, a [habeas] petitioner must present the substance of his claim to the state courts, 10 including a reference to a federal constitutional guarantee and a statement of facts that entitle the 11 petitioner to relief.”). Exhaustion is satisfied once a claim is fairly presented to the state court, 12 even if the state court’s order denying the petition is silent on the claim. See Dye v. Hofbauer, 13 546 U.S. 1, 3 (2005) (per curiam); Smith v. Digmon, 434 U.S. 332, 333 (1978) (per curiam); 14 Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a 15 state court and the state court has denied relief, it may be presumed that the state court 16 adjudicated the claim on the merits in the absence of any indication or state-law procedural 17 principles to the contrary.”). 18 Here, respondent argues that petitioner failed to exhaust his claim that prison officials 19 violated his constitutional rights when he was inappropriately denied transitional housing and 20 access to a reentry program and assigned 19 mandatory points. ECF No. 24 at 3-4. In his 21 opposition, petitioner states that he exhausted this claim before the state supreme court in a 22 separate habeas petition not cited by the respondent. ECF No. 26 at 1. We agree; in the cited 23 petition, he argued that he should be “allowed to participate in transitional programming, 24 including reentry” programming. Id. at 20-21; see In re Young (Howard) on H.C., No. S250204 25 (Cal. Dec. 19, 2018). We find that petitioner fully exhausted his housing and reentry 26 programming claim, and we will consider it here, along with petitioner’s remaining claims.1 27 1 Had petitioner not exhausted, we could still reach the merits. If it is “perfectly clear” that a 28 petitioner has “failed to present a colorable federal claim,” we may dismiss the claim on the 1 B. Due Process Violation 2 In our order requiring a response to the petition, we recognized that petitioner’s claims 3 center on an alleged violation of his due process rights during his parole hearing, for which 4 habeas relief is difficult to obtain. ECF No. 13 at 1. “The habeas statute unambiguously provides 5 that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground that 6 he is in custody in violation of the Constitution or laws or treaties of the United States.’” Wilson 7 v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). “[F]ederal habeas 8 corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) 9 (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). In Swarthout, the Supreme Court 10 considered the California state parole hearing procedure afforded California state prisoners. See 11 Swarthout v. Cooke, 562 U.S. 216, 220 (2011). The relevant due process inquiry on federal 12 habeas review is whether state procedures met certain minimum procedural requirements. Id. 13 Constitutionally adequate process includes “an opportunity to be heard” and “a statement of the 14 reasons why parole was denied.” Greenholtz v. Inmates of Neb. Penal and Correctional 15 Complex, 442 U.S. 1, 6 (1979). The Constitution requires no more. Id. In Swarthout, the Court 16 found the California parole procedures adequate, declining to require more than a hearing and a 17 statement of the reasons for denial. See Swarthout, 562 U.S. at 220. 18 Here, petitioner argues that his due process rights were violated because he was not 19 allowed to attend his parole hearing or appeal its outcome, and the hearing panel was not 20 composed of three commissioners. Petitioner got notice on July 1, 2017 that his parole review 21 had been scheduled. ECF No. 24 at 12. He had 30 days to state his case for parole in writing. Id. 22 The parole review took place on September 28, 2017, nearly two months after the initial notice. 23 ECF No. 26 at 34. When he was denied parole following the review hearing, petitioner filed a 24 request for reconsideration, and the parole board’s decision was upheld. Id. Respondent 25 provided petitioner with a list of reasons for the denial. Id. Under Swarthout, no additional 26 27 merits, regardless of a failure to exhaust. See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 28 2005); 28 U.S.C. § 2254(b)(2); Padilla v. Terhune, 309 F.3d 614, 620-21 (9th Cir. 2002). 1 procedure is required. Petitioner’s due process claims related to his parole hearing are without 2 merit, and we recommend their dismissal. 3 C. Right to Counsel 4 Petitioner claims that his Sixth Amendment right to counsel was violated because he was 5 not afforded counsel at his parole hearing. He is mistaken. “There is no clearly established right 6 to counsel at parole suitability hearings.” Lopez v. California, No. 1:14-cv-00504 MJS HC, 2014 7 U.S. Dist. LEXIS 63999, at *14 (E.D. Cal. May 8, 2014). The Supreme Court has declined to 8 create a rule requiring counsel at all parole hearings, stating that the “decision as to the need for 9 counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state 10 authority charged with responsibility for administering the probation and parole system.” 11 Gagnon v. Scarpelli, 411 U.S. 778, 788-89 (1973). Petitioner’s right to counsel claim fails and 12 we recommend that it be dismissed. 13 D. Equal Protection Violation 14 Petitioner claims that the failure to appoint counsel for his parole hearing, the denial of the 15 opportunity to appear at the hearing, the inability to appeal the hearing’s outcome, and the 16 composition of the panel violated his right to equal protection under the law. This claim fails. 17 “Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from 18 invidious discrimination based on race, religion, or membership in a protected class subject to 19 restrictions and limitations necessitated by legitimate penological interests.” Brooks v. Borders, 20 No. CV 17-02535-RGK (DFM), U.S. Dist. 2018 LEXIS 178836, at *5 (C.D. Cal. Feb. 13, 2018) 21 (citing Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). An equal protection claim can be made 22 out if a petitioner alleges intentional discrimination based on the petitioner’s membership in a 23 protected class. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A claim can 24 also be made out if a petitioner shows that the respondent treated him differently than other 25 similarly-situated individuals for a reason not rationally related to a legitimate state purpose. See 26 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Here, petitioner has not claimed any 27 discrimination based on race, religion, or membership in a protected class. He has not presented 28 1 any evidence of differential treatment as compared to individuals of a similarly-situated class. 2 Therefore, his equal protection claim fails and we recommend that it be dismissed. 3 E. Cruel and Unusual Punishment 4 Petitioner claims that respondent’s failure to take his mental health into account in 5 determining his parole status amounts to a violation of the Eighth Amendment prohibition against 6 cruel and unusual punishment. Specifically, petitioner claims that his mental illness played a role 7 in his rule violations. On habeas review, “the federal court’s scope of review of parole board 8 decisions is very limited.” Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987). “If 9 there is no constitutional violation . . . the court may not substitute its decision for that of the 10 [b]oard.” Id. The court’s inquiry here is limited to whether “the minimum procedures adequate 11 for due-process protection” were followed. Swarthout, 562 U.S. at 221. We will not inquire into 12 the adequacy of evidence considered by a parole board. See Pedro, 825 F.2d at 1399. 13 Because we find that the procedures afforded by the parole board did not violate 14 petitioner’s constitutional rights, we decline to determine whether the parole board adequately 15 considered petitioner’s mental health status in its decision.2 We recommend that petitioner’s 16 claim be dismissed. 17 F. “Some Evidence” Standard of Review 18 Petitioner claims that the parole board’s application of California’s “some evidence” 19 standard violated his constitutional rights. Generally, California’s “some evidence” standard 20 requires that a parole board’s decision be supported by at least some evidence in the record. In re 21 Shaputis, 44 Cal. 4th 1241, 1246 (Cal. 2008). This is not, however, a federal constitutional rule. 22 The Supreme Court definitively stated that federal courts should not convert California’s “some 23 evidence” rule “into a substantive federal requirement.” Swarthout, 562 U.S. at 220-21; see 24 Ledesma v. Marshall, 466 F. App’x 647, 648 (9th Cir. 2012) (“[F]ederal habeas relief is not 25 available based on the misapplication of California’s ‘some evidence’ rule of judicial review.”). 26 27 2 Contrary to petitioner’s assertion, the review board did consider a long list of aggravating and mitigating factors when making their decision and provided these in writing to petitioner. See 28 ECF No. 26 at 35-39. 1 Therefore, petitioner’s claim that the application of the “some evidence” standard violated his 2 constitutional rights is not cognizable and we recommend that it be dismissed. 3 G. Housing and Programs Denial and Mandatory Points 4 Finally, petitioner claims that the denial of transitional housing and reentry programming 5 and the application of 19 mandatory points violated his constitutional rights. Under section 2254, 6 a writ of habeas corpus is available to prisoners challenging the fact or duration of their 7 confinement. See Heck v. Humphrey, 512 U.S. 477, 481 (1994). In contrast, if a favorable 8 judgment for the petitioner would not “necessarily lead to his immediate or earlier release from 9 confinement,” the court lacks habeas corpus jurisdiction. See Nettles v. Grounds, 830 F.3d 922, 10 935-37 (9th Cir. 2016). “Requests for relief turning on circumstances of confinement may be 11 presented in a [42 U.S.C.] § 1983 action.” Muhammad v. Close, 540 U.S. 749, 750 (2004). Here, 12 petitioner’s housing and programming complaints are challenges to the conditions of his 13 confinement, not to the fact or duration thereof. Petitioner’s challenge to the application of 19 14 mandatory points is vague and conclusory. He explains neither the significance of the points nor 15 how the points deprived him of any constitutional right. Without additional facts, we cannot 16 determine whether the mandatory points affected the duration of his confinement. Therefore, we 17 recommend dismissal of petitioner’s housing, programming, and mandatory points claims as non- 18 cognizable. 19 III. Motions to Amend 20 Petitioner submitted two motions to amend his petition. ECF No. 29, 36. Both motions 21 seek the same general relief: leave to add a claim that petitioner’s due process rights were 22 violated at the parole hearing. See ECF No. 29 at 1; ECF No. 36 at 1. Courts “should freely give 23 leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, we may deny 24 leave to amend under Rule 15(a) when such amendment would be futile. See Foman v. Davis, 25 371 U.S. 178, 182 (1962). Petitioner seeks leave to amend his petition with a claim already 26 considered and found meritless here.3 See discussion supra Part B. An additional claim that 27 3 Petitioner cites to Swarthout in support of his motion, but it provides no support. Under 28 Swarthout, this court’s inquiry is limited to whether petitioner was given an opportunity to be 1 petitioner’s due process rights were violated at the parole hearing would be futile. Therefore, 2 petitioner’s motions to amend are denied. 3 IV. Motion for Discovery 4 Petitioner seeks to conduct discovery. ECF No. 28. A habeas petitioner, “unlike the usual 5 civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. 6 Gramley, 520 U.S. 899, 904 (1997). Under Rule 6(a) of the Rules Governing Section 2254 7 Cases, a federal district court may authorize discovery in a habeas proceeding for good cause. 8 See id. at 904-05. Good cause exists if “specific allegations before the court show reason to 9 believe that the petitioner may, if the facts are fully developed,” demonstrate entitlement to 10 habeas relief. Smith v. Mahoney, 611 F.3d 978, 996-97 (9th Cir. 2010). However, “bald 11 assertions and conclusory allegations” do not “provide a basis for imposing upon the state the 12 burden of responding in discovery to every habeas petitioner who wishes to seek such discovery.” 13 Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (citing Wacht v. Cardwell, 604 F.2d 1245, 14 1246 n.2 (9th Cir. 1979)). 15 Here, petitioner seeks copies of all documents in his prison file, including documents that 16 were considered during the parole review process. ECF No. 28 at 1. Petitioner has not given the 17 court “reason to believe that the petitioner may, if the facts are fully developed,” demonstrate 18 entitlement to habeas relief. Smith, 611 F.3d at 996-97. We therefore deny the motion for 19 discovery. 20 V. Motion to Appoint Counsel 21 Petitioner moves for the appointment of counsel. ECF No. 30. He specifically seeks 22 counsel to review documents that he requested in his motion for discovery. ECF No. 28. A 23 petitioner in a habeas proceeding does not have an absolute right to counsel. See Anderson v. 24 Heinze, 258 F.2d 479, 481 (9th Cir. 1958). There are three circumstances in which appointment 25 of counsel may be required in habeas proceedings. First, appointment of counsel is required for 26 an indigent person seeking to vacate or set aside a death sentence in post-conviction proceedings 27 28 heard by the parole board and an explanation of the parole board’s denial. Petitioner got both. 1 under 28 U.S.C §§ 2254 or 2255. See 18 U.S.C. § 3599(a)(2). Second, appointment of counsel 2 may be required if an evidentiary hearing is warranted. See R. Governing § 2254 Cases 8(c). 3 Third, appointment of counsel may be necessary for effective discovery. See id. at 6(a). None of 4 these situations is present here. 5 This court is further authorized to appoint counsel for an indigent petitioner in a habeas 6 corpus proceeding if the court determines that the interests of justice require the assistance of 7 counsel. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 18 U.S.C. § 3006A(a)(2)(B). 8 However, “[i]ndigent state prisoners applying for habeas corpus relief are not entitled to 9 appointed counsel unless the circumstances of a particular case indicate that appointed counsel is 10 necessary to prevent due process violations.” Chaney, 801 F.2d at 1196. In assessing whether to 11 appoint counsel, the court evaluates the petitioner’s likelihood of success on the merits as well as 12 the ability of the petitioner to articulate his claims without counsel, considering the complexity of 13 the legal issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 14 We cannot conclude at this point that counsel is necessary to prevent a due process 15 violation. The legal issues currently involved are not exceptionally complicated, petitioner is able 16 to articulate his claims, and he has not demonstrated that he is likely to succeed on the merits. 17 Specifically, petitioner seeks counsel to review discovery. Because we deny the motion for 18 discovery, appointed counsel is not necessary for this purpose. We find that appointed counsel is 19 not necessary to guard against a due process violation and that the interests of justice do not 20 require the appointment of counsel. Petitioner’s motion is denied. 21 VI. Motion to Rule on Pending Motions 22 Petitioner requested rulings on his outstanding motions. ECF No. 40. Because all 23 outstanding motions have been addressed here, we dismiss this motion as moot. 24 VII. Certificate of Appealability 25 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 26 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 27 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 28 1 requires a district court to issue or deny a certificate of appealability when entering a final order 2 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 3 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes 4 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 5 standard requires the petitioner to show that “jurists of reason could disagree with the district 6 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 7 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord 8 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 9 Here, petitioner has not made a substantial showing of the denial of a constitutional right. 10 Thus, the court should decline to issue a certificate of appealability. 11 VIII. Order 12 Accordingly, 13 1. Petitioner’s motions to amend are denied. ECF No. 29, 36. 14 2. Petitioner’s motion for discovery is denied. ECF No. 28. 15 3. Petitioner’s motion to appoint counsel is denied. ECF No. 30. 16 4. Petitioner’s motion to rule on pending motions is dismissed as moot. ECF No. 40. 17 IX. Findings and Recommendations 18 We recommend that the court grant respondent’s motion to dismiss. ECF No. 24. 19 These findings and recommendations are submitted to the U.S. District Court judge presiding 20 over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the 21 United States District Court, Eastern District of California. Within 14 days of the service of the 22 findings and recommendations, any party may file written objections to the findings and 23 recommendations with the court and serve a copy on all parties. That document must be 24 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 25 will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 26 27 28 1 > IT IS SO ORDERED. V4), —N prssann — Dated: _ February 25, 2020 4 UNI STATES MAGISTRATE JUDGE 5 6 | No. 206. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11