Gonzales v. Swarthout

RICHARD GONZALES, Petitioner, v. GARY SWARTHOUT, Warden California State Prison, Solano, Respondent.

No. 2:10-cv-00205-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: October 16, 2012

MEMORANDUM DECISION

Richard Gonzales, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Gonzales is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered, and Gonzales has replied.

I. BACKGROUND

In August 1998 Gonzales was convicted in the Orange County Superior Court of Murder in the Second Degree (Cal. Penal Code § 187) and sentenced to an indeterminate prison term of fifteen years to life. Gonzales does not challenge his conviction or sentence in this proceeding.

In February 2009 Gonzales appeared in a parole suitability hearing before the California Board of Parole Hearings ("Board"). The Board, finding that Gonzales continued to pose a continuing risk of danger to society if released from prison, denied parole. The Board, applying Cal. Penal Code § 3041.5, deferred Gonzales's next parole suitability hearing for three years. The Orange County Superior Court denied Gonzales's petition for habeas relief in a reasoned decision. The California Court of Appeal, Fourth Appellate District, summarily denied Gonzales's petition for habeas relief without opinion or citation to authority, and the CaliforniaSupreme Court did the same on December 17, 2009. Gonzales timely filed his Petition in this Court on January 24, 2010.

II. GROUNDS RAISED/DEFENSES

Gonzales raises two grounds for relief: (1) that the Board's application of the 2008 amendment to California Penal Code § 3041.5 (Marsy's law) to him violates the Ex Post Facto Clause, United States Constitution Article I section 10, and (2) that the decision of the Board denying parole is not supported by sufficient evidence. Respondent does not assert any affirmative defenses.

III. PRIOR PROCEEDINGS BEFORE THIS COURT

In February 2011 the Magistrate Judge entered Findings and Recommendations recommending that Gonzales's Petition be denied.¹ Gonzales's objection notwithstanding, this Court adopted the Findings and Recommendations in full,² and judgment was entered denying the Petition and denying a Certificate of Appealability (COA) .³ Gonzales timely appealed and sought a COA from the court of appeals, and on January 24, 2012, a panel of the Court of Appeals vacated and remanded in an unreported decision:⁴

We grant the request for a certificate of appealability with respect to the issue of whether the district court properly denied appellant's 28 U.S.C. § 2254 petition without specifically addressing his ex post facto claim, see 28 U.S.C. § 2253(c)(3),Slack v. McDaniel, 529 U.S. 473, 483-85 (2000), and summarily vacate the district court's March 28, 2011, dismissal order and judgment. This case is remanded to the district court with instructions that the district court review and enter an order and judgment resolving the ex post facto claim raised in appellant's 28 U.S.C. § 2254 petition.⁵

After remand, the assigned Magistrate Judge entered Findings and Recommendations recommending that the Petition be denied.⁶ Gonzales filed objections to those Findings and Recommendations,⁷ and they were withdrawn.⁸ Thereafter the reference to the Magistrate Judge was withdrawn and this case was reassigned to this Court.⁹ The Court has reviewed the entire record with particular attention to any documents filed after remand from the Ninth Circuit. The record is complete and the case is ripe for decision. In making its decision, this Court has also considered the arguments raised by Gonzales in his objections.

IV. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State courtproceeding."¹⁰ The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."¹¹ The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.¹² Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"¹³ When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."¹⁴ The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.¹⁵ "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of dueprocess.'"¹⁶ In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.¹⁷ Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.¹⁸

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). 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.¹⁹

In applying this standard, this Court reviews the "last reasoned decision" by the state court.²⁰ State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.²¹ This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.²²

Under California's unique habeas procedure, a prisoner who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.²³This is considered as the functional equivalent of the appeal process.²⁴ Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumptionby clear and convincing evidence.²⁵ This presumption applies to state-trial courts and appellate courts alike.²⁶

V. DISCUSSION

The sole issue this Court may consider on remand is Gonzales's first ground,²⁷ i.e., that application of the 2008 amendment to Penal Code § 3041.5 to Gonzales violated the Ex Post Facto Clause. In denying Gonzales relief, the Orange County Superior Court held:

[Gonzales] next contends that retroactive application of recently amended Penal Code § 3041.5 to defer his next parole consideration hearing for three years improperly increases his punishment in violation of the terms of his plea agreement as well as the constitutional proscription against ex post facto legislation.

At the time of [Gonzales's] conviction in 1 988, the Board of Parole Hearings (formerly the Board of Prison Terms) was required to hold parole consideration hearing for eligible life inmates every one to two years. (See, Pen. Code, § 3041.5(b)(2) (1988).) In 1995, § 3041.5 was amended to expand the deferral period up to five years. (See, Pen. Code, § 3041.5(b)(2)(B) (1995).) Last year, voters passed Proposition 9 that expanded the deferral period up to 15 years. (Pen. Code, § 3041.5(b)(3)(A).) Pursuant to Penal Code§ 3041.5(b)(3)(c), the Board deferred [Gonzales's] next parole suitability hearing for three years.

The constitutional proscription against ex post facto legislation is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts. The controlling inquiry in evaluating whether the retroactiveapplication of a statute permitting the extension of intervals between parole consideration hearings violates the ex post facto clause is whether such application produces a sufficient risk of increasing the measure of

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