Torres v. Kernan ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO TORRES, Case No. 19-cv-06885-PJH 8 Petitioner, ORDER OF DISMISSAL v. 9 Re: Dkt. No. 2 10 SCOTT KERNAN, Respondent. 11 12 13 Petitioner, a former California prisoner and parolee, filed a pro se petition for a writ 14 of habeas corpus pursuant to 28 U.S.C. § 2254. His parole violation finding occurred in 15 Contra Costa County, which is in this district, so venue is proper here. See 28 U.S.C. § 16 2241(d). He has also filed a motion to proceed in forma pauperis 17 BACKGROUND 18 Petitioner was released from custody from state prison on November 14, 2018. 19 Case No. 19-6885, Docket No. 1 at 12. Petitioner filed a habeas petition regarding that 20 conviction that was denied on the merits on March 8, 2019. See Torres v. Hatton, Case 21 No. 17-cv-4332 PJH. With respect to that prior conviction from Case No. 17-4332, 22 petitioner pleaded guilty to several counts and was sentenced to six years. Case No. 17- 23 4332, Docket No. 35 at 159-65.1 On the written waiver and plea form signed by 24 petitioner, he initialed the statement indicating that he understood that his prison 25 sentence would be followed by being on parole or post release community supervision. 26 Case No. 17-4332, Docket No. 1-7 at 14, 16. During the plea allocution, the trial judge 27 1 indicated that if convicted of a serious violent felony, petitioner would be placed on parole 2 when his sentence was completed and be required to follow certain terms and conditions. 3 Case No. 17-4332, Docket No. 35 at 164. The prosecutor had previously indicated that 4 the state term would be six years with 85% percent to be served because it was a violent 5 felony. Id. at 156. 6 On November 9, 2018, several days before petitioner was released from custody, 7 he was provided a notice and conditions of his parole. Case No. 19-6885, Docket No. 1 8 at 22-24. Petitioner refused to sign the notice and conditions. Id. at 22-24. On January 9 17, 2019, petitioner was arrested for violating the conditions of parole. Id. at 12, 16. On 10 February 28, 2019, petitioner was found to have violated parole for failing to report to the 11 parole office and sentenced to 180 days. Id. at 48. 12 DISCUSSION 13 STANDARD OF REVIEW 14 This court may entertain a petition for writ of habeas corpus “in behalf of a person 15 in custody pursuant to the judgment of a State court only on the ground that he is in 16 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 17 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 18 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 19 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 20 pursuant to a judgment of a state court must “specify all the grounds for relief available to 21 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 22 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 23 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 24 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 25 1970)). 26 LEGAL CLAIMS 27 As grounds for federal habeas relief petitioner argues that his parole violation is 1 he would like this court to acknowledge that he was not on parole. Id. Petitioner 2 specifically argues he was not on parole because he refused to sign the parole papers 3 when he was released from prison. Id. at 12, 17. He contends that the parole papers 4 were a contract and were not binding because he did not sign them. Id. at 17. He 5 alleges that he was arrested in retaliation for refusing to sign the documents. Id. 6 Assuming that petitioner has presented a cognizable claim, he is still not entitled to 7 relief. Petitioner presented this claim to the California state courts. The Superior Court 8 for Contra Costa County issued a reasoned opinion and the California Supreme Court 9 denied his petition without comment or citation. Id. at 47; California Supreme Court Case 10 No. S257313. The superior court stated: 11 Parole is not a contract that requires a prisoner’s consent. Rather, it is a mandatory part of his or her state prison 12 sentence. (Pen. Code § 3000, [“A sentence resulting in imprisonment in the state prison pursuant to Section 1168 or 13 1170 shall include a period of parole supervision or postrelease community supervision,”].) Petitioner’s argument that he never 14 agreed to be placed on parole lacks merit as his consent or agreement is irrelevant. Parole supervision is mandated under 15 California law as part of his state prison sentence. Petitioner was advised of the term of parole supervision during his 16 sentencing hearing… 17 Case No. 19-6885, Docket No. 1 at 8. 18 The state courts found that pursuant to California law parole was a mandatory part 19 of petitioner’s sentence and did not require his consent or signature. As noted by the 20 state court and above, petitioner was notified of the parole requirement when he pled 21 guilty and he acknowledged it. Petitioner was also aware that he would be subject to 22 parole conditions when he was released from prison but chose not to sign the document 23 and more importantly chose not to abide by the conditions. Petitioner has presented a 24 state law claim that has already been ruled on by the state courts and this court cannot 25 overrule those decisions. Federal habeas relief is not available for an alleged state law 26 error. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (a federal habeas court cannot 27 reexamine a state court's interpretation and application of state law). 1 CONCLUSION 2 1. The motion to proceed in forma pauperis (Docket No. 2) is GRANTED. 3 2. The petition is DISMISSED for the reasons set forth above. Because 4 reasonable jurists would not find the result here debatable, a certificate of appealability 5 (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for 6 COA). The clerk shall close this case. 7 IT IS SO ORDERED. 8 Dated: January 22, 2020 9 10 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27