Larry Charles Cleveland v. Warden

[8] UNITED STATES DISTRICT COURT [9] CENTRAL DISTRICT OF CALIFORNIA [10] 11 LARRY CHARLES CLEVELAND, Case No. 2:19-cv-09730-DSF (GJS) 12 Petitioner 13 v. ORDER: SUMMARILY DENYING AND DISMISSING PETITION; 14 WARDEN, AND DENYING CERTIFICATE OF APPEALABILITY 15 Respondent. [17] 18 On November 13, 2019, Petitioner filed a 28 U.S.C. § 2254 habeas petition in 19 this District [Dkt. 1, “Petition”]. The Petition challenges a September 2017 decision 20 by California’s Board of Parole Hearings (“BPH”) finding Petitioner to be 21 unsuitable for release on nonviolent offender parole. 22 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 23 Courts provides that a petition for writ of habeas corpus “must” be summarily 24 dismissed “[i]f it plainly appears from the petition and any attached exhibits that the 25 petitioner is not entitled to relief in the district court.” Here, it plainly appears on 26 the face of the Petition that Petitioner’s claims are not cognizable in federal habeas 27 review and could not be rendered cognizable through amendment. Therefore, the 28 Petition must be dismissed, for the reasons set forth below. [1] 2 In 2012, in Los Angeles Superior Court, Petitioner was convicted of violations of 3 California Penal Code §§ 148(a)(1) and 12022.1 and California Health & Safety 4 Code §§ 11351, 11375(b)(1), and 11370.2(a). In February 2013, he received a total 5 sentence exceeding 25 years. [See Petition at ECF #45.] 6 Following the conclusion of his state direct appeal, Petitioner sought federal 7 habeas relief in Case No. 2:16-cv-02118-DSF (GJS) in this District. Habeas relief 8 was denied on July 29, 2019, and Petitioner’s appeal to the United States Court of 9 Appeals for the Ninth Circuit is pending (No. 19-56092). 10 As discussed below, in November 2016, California voters approved Proposition 11 57, which made parole more available for certain felons convicted of nonviolent 12 crimes (hereafter, “nonviolent offender parole”). On or about July 1, 2017, 13 Petitioner was informed that he was eligible for consideration for nonviolent 14 offender parole. [Petition at ECF ## 83, 99-101.] On September 4, 2017, the BPH 15 denied Petitioner nonviolent offender parole, finding that he posed an unreasonable 16 risk of violence to the community. [Petition at ECF ## 103-04, the “BPH Parole 17 Decision”.] The BPH found that while Petitioner’s current commitment offense 18 overall is a mitigating factor (although his multiple Count 5 felonies were an 19 aggravating factor), both his prior criminal history and his institutional behavior 20 were aggravating factors that, on balance, outweighed the mitigating factor. The 21 BPH stated: “The prior criminal history is long and evidences violent conduct 22 (robberies) which when combined with his continued negative institutional conduct 23 supports the conclusion he is a risk of violence to the community.” [Id.] 24 Petitioner sought review of the BPH Parole Decision. [Petition at ECF ## 11225 14.] On October 16, 2017, the BPH upheld its prior decision, finding that no factual 26 or legal errors had been made and that the regulatory criteria for assessing 27 nonviolent offender parole had been applied properly. [Petition at ECF ## 109-10.] 28 Over 17 months passed. On March 21, 2019, Petitioner filed a habeas petition in [1] 2 case. On April 17, 2019, in a written reasoned decision, the Los Angeles Superior 3 Court denied the habeas petition on its merits. [Petition at ECF ## 30-34.] The 4 Superior Court found that the California law “some evidence” standard (discussed 5 infra) had been satisfied. The Superior Court found that the BPH had erred in 6 treating Petitioner’s prior criminal history as an aggravating factor and that it, 7 instead, should have been viewed as a mitigating factor. The Superior Court 8 nonetheless found habeas relief unavailable under the governing “some evidence” 9 standard, concluding that: Petitioner’s institutional misconduct was probative of 10 current dangerousness and constituted “some evidence” to support the BPH Parole 11 Decision; and Petitioner had received the parole consideration to which he was 12 entitled for due process purposes. The Superior Court rejected Petitioner’s 13 contention (also made here) that, under Proposition 57, he is presumptively entitled 14 to release upon serving the full term for his primary offense, noting that Proposition 15 57, as enacted in Article I, section 32 of the California Constitution, merely provides 16 that a qualifying prisoner “shall be eligible for parole consideration” after 17 completing such a full term. [Id. at 34.] 18 Petitioner thereafter sought habeas relief in the California Court of Appeal by 19 habeas petition filed on May 20, 2019 (Case No. B297694). On May 24, 2019, the 20 California Court of Appeal denied habeas relief, stating that Petitioner had failed to 21 demonstrate a prima face case for relief. [Petition at ECF # 5.] Petitioner then filed 22 a habeas petition in the California Supreme Court (Case No. S256662), which 23 summarily denied relief on September 25, 2019. [Petition at ECF # 3.] [24] 25 PETITIONER’S HABEAS CLAIM 26 While it is readily apparent that the Petition challenges the BPH Parole 27 Decision, the Petition itself is difficult to follow, given its length (120 pages) and 28 jumbled nature. In an unusual formatting decision, the Petition commences with 43 [1] 2 Petitioner’s actual federal habeas petition [ECF ## 44-51], before again appending 3 selected portions of Petitioner’s state court filings and exhibits. Throughout much 4 of his argument, Petitioner discusses and opines about the Plata/Coleman class 5 actions, a February 2014 “Three-Judge Court” Order, and a related parole review 6 program implemented for non-violent, non-sex-registrant second-strike offenders 7 (known by the acronym “NVSS”). It is unclear why he does so given that (as the 8 exhibits to the Petition demonstrate) Petitioner was reviewed for parole pursuant to 9 the nonviolent offender parole review system implemented through regulations 10 enacted in 2017 following the passage of Proposition 57. 11 Be that as it may, the Petition itself alleges only two claims. Ground One 12 asserts that, under the above-noted unidentified Three-Judge Court Order, 13 Petitioner’s imprisonment is “unlawful” “because” of the enactment of Proposition 14 57 as implemented in Art. I, sec. 32(a)(1) of the California Constitution. [Petition at 15 ECF # 5.] Ground Two states only that as a result of Proposition 57’s enactment, 16 Petitioner is presumed eligible for parole and is referred to the BPH to determine 17 whether his release would pose an unreasonable risk of violence to the community. 18 [Id.] Neither of these Grounds come close to stating any kind of cognizable federal 19 habeas claim; rather, they are nothing more than an assertion that, under Proposition 20 57, Petitioner is entitled to release on parole. In an effort to determine what 21 Petitioner actually is complaining about, the Court has carefully reviewed the 22 Petition in toto and has liberally construed it. Excessive and irrelevant verbiage 23 aside, it appears that Petitioner seeks federal habeas relief based on a simple claim. 24 Petitioner argues that the Proposition 57 procedures give rise to a federal 25 procedural due process liberty interest. He contends that this liberty interest was 26 violated for two reasons. First, Petitioner complains that the BPH looked to his 27 prior criminal record as a basis for finding him unsuitable for parole, which it is not 28 permitted to do. Second, Petitioner agrees with the state court that California’s [1] 2 for prisoners with indeterminate terms – applies to nonviolent offender parole 3 decisions, but contends that the “some evidence” requirement is not met as to the 4 BPH Parole Decision. Petitioner argues that there is “no evidence” to support the 5 BPH’s finding that Petitioner poses an unreasonable risk of violence. At the end of 6 his argument, Petitioner asserts that he is entitled to receive an evidentiary hearing 7 to determine his suitability for parole. [8] 9 DISCUSSION 10 On November 8, 2016, California voters approved Proposition 57 and it took 11 effect the next day. As implemented in the California Constitution, Proposition 57 12 provides, as relevant here: “Parole consideration: Any person convicted of a 13 nonviolent felony offense and sentenced to state prison shall be eligible for parole 14 consideration after completing the full term of his or her primary offense.” Cal. 15 Const. art. I, § 32, subd. (a)(1). Proposition 57, thus, did not mandate that inmates 16 within its scope actually be paroled but, rather, that they be eligible for parole 17 consideration once they have completed the required base term. The regulations 18 that went into effect following Proposition 57 and that governs nonviolent offender 19 parole review require the BPH hearing officer to weigh enumerated factors “and, 20 based on the totality of the circumstances, determine if the inmate poses a current, 21 unreasonable risk of violence or a current, unreasonable risk of significant criminal 22 activity.” See 15 C.C.R. § 2449.5(a). 23 With respect to parole suitability consideration in California, as a general matter, 24 “the paramount consideration for both the Board and the Governor under the 25 governing statutes is whether the inmate currently poses a threat to public safety and 26 thus may not be released on parole.” In re Lawrence, 44 Cal. 4th 1181 , 1210 27 (2008). California law requires that a finding a prisoner is unsuitable for parole be 28 supported by “some evidence” that he currently poses such a threat. See id. at 1212 ; [1] 2 evidence” standard applies to the BPH Parole Decision, and asks this Court to find it 3 unsatisfied, including by holding an evidentiary hearing on this issue. 4 In Swarthout v. Cooke, 562 U.S. 216 (2011) (per curiam), the Supreme Court 5 considered a habeas claim akin to that made by Petitioner, namely, that a California 6 state prisoner’s right to federal due process was violated by a parole unsuitability 7 finding that allegedly was not supported by “some evidence.” The Supreme Court 8 observed that a state, such as California, may create “a liberty interest in parole.” [9] Id. at 219 . The existence of such a state liberty interest, however, does not give rise 10 to a federal right to be paroled, and compliance with California’s “some evidence” 11 requirement is not a substantive due process requirement. Id. at 220-21 (“There is 12 no right under the Federal Constitution to be conditionally released before the 13 expiration of a valid sentence, and the States are under no duty to offer parole to 14 their prisoners.”; and “No opinion of ours supports converting California’s ‘some 15 evidence’ rule into a substantive federal requirement.”); see also Styre v. Adams, [16] 645 F.3d 1106, 1108 (9th Cir. 2011) (“‘there is no substantive due process right 17 created by California’s parole scheme’”) (citation omitted). 18 Cooke made clear that the only federal issue cognizable when a California 19 prisoner complains that his denial of parole violates due process is a procedural one, 20 namely, did the prisoner receive the “minimal” procedures required by procedural 21 due process, which are the right to be heard and a statement of the reasons why 22 parole was denied. 562 U.S. at 220 . This is “the beginning and the end of the 23 federal habeas courts’ inquiry” into a due process claim. Id. The Court need not, 24 and does not, decide whether or not Proposition 57 gives rise to a constitutionally 25 protected liberty interest, because even if, arguendo, it does, no violation exists 26 here. Petitioner does not allege or complain that he did not receive the minimal 27 procedural requisites noted in Cooke, nor could he. The record shows that Petitioner 28 received an initial notice advising him that he was eligible for screening for [1] 2 ECF ## 99-100.] He received a July 1, 2017 Notice advising that he had passed 3 screening and would be referred to the BPH for nonviolent offender parole review. 4 The Notice expressly advised Petitioner that he had 30 days in which to submit to 5 the BPH a written statement explaining why he believed he would not pose a risk of 6 violence if released and why he should be released on parole. [Id. at # 101.] 7 Petitioner alleges that he submitted such a written statement on or about July 12, 8 2017. [Id. at # 83.] Petitioner thereafter received the BPH Parole Decision, which 9 set forth in writing the BPH’s “Statement of Reasons” for finding Petitioner 10 unsuitable for nonviolent offender parole. [Id. at ##103-04.] Petitioner then moved 11 for reconsideration, and in denying reconsideration, the BPH again provided him 12 with a written statement of reasons for its decision. [Id. at ## 109-10.] 13 In short, the Petition does not and cannot set forth any tenable basis for finding a 14 procedural due process violation within the scope of Cooke. Rather, through this 15 action, Petitioner takes issue with: the BPH’s erroneous reliance on his prior 16 criminal record in connection with its finding that he presents an unreasonable risk 17 of violence; and the state court’s subsequent conclusion on habeas review that, even 18 after setting that BPH error aside, “some evidence” nonetheless supports that 19 finding. Petitioner disagrees with the state court’s finding that his institutional 20 misconduct constitutes “some evidence” to support the risk of violence finding. The 21 crux of Petitioner’s claim is that the BPH misapplied California law when it made 22 its dangerousness assessment by improperly applying the factors required to be 23 considered under the relevant regulation and that the state court misapplied 24 California law in finding “some evidence” to support the BPH’s assessment. In 25 short, Petitioner argues that the BPH and the California courts reached an incorrect 26 result under California law. This claim, however, does not raise a cognizable 27 federal issue. See Cooke, 562 U.S. at 221 (“it is no federal concern here whether 28 California’s ‘some evidence’ rule of judicial review (a procedure beyond what the [1] 2 1046 (9th Cir. 2011) (“it makes no difference that [petitioner] may have been 3 subjected to a misapplication of California [law]. A state’s misapplication of its 4 own laws does not provide a basis for granting a federal writ of habeas corpus.”). 5 Petitioner’s arguments raise, at most, a claim that the BPH and the state courts 6 failed to properly apply California law in determining his suitability for nonviolent 7 offender parole and in finding the required “some evidence.”1 The Petition raises 8 the very type of claim that Cooke made clear is not cognizable on federal habeas 9 review. Cooke flatly rejected the contention that the federal Due Process Clause 10 contains a guarantee of evidentiary sufficiency with respect to a parole 11 determination. Cooke, 562 U.S. at 220-21 ; see also Miller v. Oregon Bd. of Parole, [12] 642 F.3d 711 , 716-17 (9th Cir. 2011) (the only federal habeas issue cognizable is 13 not whether Board’s parole denial was “substantively reasonable” or whether the 14 Board correctly applied state parole standards; rather, the sole issue is simply 15 “whether the state provided [petitioner] with the minimum procedural due process 16 outlined in Cooke”); Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) ( Cooke 17 “held that, under the Fourteenth Amendment’s Due Process Clause, the protections 18 to which a California inmate is entitled prior to a denial of parole do not include a 19 showing of some evidence of future dangerousness”). Accordingly, the Petition’s 20 attempt to challenge the sufficiency of the evidence underlying the BPH Parole 21 Decision is not cognizable. See id. (“Cooke makes clear that we cannot consider 22 whether ‘some evidence’ of dangerousness supported a denial of parole on a petition [24] 1 The Superior Court agreed with Petitioner that the BPH had erred by considering 25 Petitioner’s prior crimes to be an aggravating factor, but effectively found this error to be harmless, because his institutional misconduct was an aggravating factor and constituted “some [26] evidence” to support the BPH’s unreasonable risk of violence finding. Given that the state court 27 found in Petitioner’s favor on his claim that the BPH committed error with respect to its treatment of his prior criminal record, the lengthy argument in the Petition regarding the BPH’s error in this 28 same respect is unnecessary. In any event, this argument again amounts only to a complaint about state law error that is not cognizable. 1 || filed under 28 U.S.C. § 2254 .”). As in Pearson, because Petitioner does not 2 || complain that the “minimal” procedures required by due process were not provided 3 || and, instead, complains only that “some evidence” does not support the BPH Parole A || Decision, “our inquiry it at its end” (id.) and dismissal is required.’ [5] 6 CONCLUSION 7 For the foregoing reasons, the Petition fails to plead any claim that is cognizable 8 || in federal habeas review, and no amount of amendment could make it so. It is plain 9 || from the face of the Petition that summary dismissal of the Petition is required by 10 || Rule 4. Accordingly, IT IS ORDERED that: the Petition is DENIED; and 11 || Judgment shall be entered dismissing this action with prejudice. 12 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in 13 || the United States District Courts, the Court has considered whether a certificate of 14 || appealability is warranted in this case. See 28 U.S.C. § 2253 (c)(2); Slack v. 15 || McDaniel, 120 S. Ct. 1595, 1604 (2000). The Court concludes that a certificate of 16 || appealability is unwarranted, and thus, a certificate of appealability is DENIED. 17 LET JUDGMENT BE ENTERED ACCORDINGLY. [18] 19 DATED: December 20, 2019 / ) 20 Honorable Dale 5. Fischer =—— UNITED STATES DISTRICT JUDGE 99 || PRESENTED BY: 23 | TT GAIL J. STANDISH 25 || UNITED STATES MAGISTRATE JUDGE [27] 28 ||? Petitioner’s assertion that he is entitled to have an evidentiary hearing at which the “some evidence” issue will be relitigated flies in the of Cooke and is rejected.