Joseph v. Beard

JOHN GONZALES JOSEPH, Petitioner, v. JEFFREY BEARD, Secretary, California Department of Corrections and Rehabilitation,¹ Respondent.

No. 2:11-cv-00260-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: March 21, 2014

MEMORANDUM DECISION

John Gonzalez Joseph, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. At the time he filed his Petition, Joseph was in the custody of the California Department of Corrections and Rehabilitation and incarcerated at California State Prison-Solano. It appears that he has been released on supervised parole, as a search on the California Department of Corrections and Rehabilitation's inmate locator website (http://inmatelocator.cdcr.ca.gov/, Inmate No. K67634) has no record of him. Respondent has answered, and Joseph has replied. As of June 22, 2012, the date his counsel filed the Traverse, it appears that Joseph was still incarcerated at Solano. He has not filed a change of address with this Court.

I. BACKGROUND/PRIOR PROCEEDINGS

Upon direct appeal of his conviction, the California Court of Appeal summarized the following facts underlying Joseph's conviction:

One evening near midnight at the Acapulco restaurant in Monrovia, Joseph and his brother, Robert, became embroiled in an argument with Gerald Brown (Gerald) and his cousin, John Brown.

The conversation was not what you would find in a Jane Austen novel. Joseph angrily told Gerald, "Fuck this shit. We don't have to take this from nobody, you know . . . . What you want to do?" Gerald replied, "I will treat you like you're my bitch and . . . I don't have a problem fighting you, you know. Whatever is going to be is going to be." James Holloway (Holloway), a friend of Gerald's, stepped in and separated Gerald and Joseph. Acapulco's manager told them to leave and the assistant manager called the police.

Joseph waved a buck-type knife at Holloway in the parking lot. Joseph threatened, "If you don't stop fucking with me, I'll kill you." Joseph proclaimed he would "blow this whole place up." Gerald tried to intervene, warning Holloway about the knife Joseph held. Gerald and Holloway retreated, but Joseph raised his finger in the air and said "Fuck you" to the retreating men.

The men came back and a fight started. Holloway ran towards the fight, tripped over a parking block and fell. Joseph pounced on Holloway and repeatedly stabbed him in the chest. Holloway died quickly. Joseph's cousin, Doreen, told Joseph he needed to leave. Joseph ran and hid, leaving a trail of blood. Shortly thereafter, the police found Joseph coming out from some bushes with his hands raised. Gerald identified him and the police took him into custody.

Joseph's hands were bleeding profusely. Although the police could not find the knife, Joseph later admitted to Detective Perenishko that he stabbed Holloway with a folding knife.

The jury found Joseph guilty of second degree murder and that he personally used a deadly weapon. The trial court denied his motion for new trial and sentenced him.

The Court of Appeal affirmed the judgment against Joseph in a reasoned opinion.

On April 5, 2010, Joseph, represented by counsel, filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court challenging the September 30, 2009, decision of the Board of Parole Hearings ("Board") finding Joseph unsuitable for parole. The superior court denied the petition, finding that the Board's decision denying Joseph parole was properly supported by evidence that his release would pose a risk of danger to public safety, as required by California law.

Joseph's attorney then filed a habeas petition in the California Court of Appeal, again arguing that the Board violated Joseph's due process rights "because there was not someevidence in the record to support its finding that he poses a current unreasonable risk to public safety." The appellate court summarily denied the petition on October 1, 2010.

Again proceeding through counsel, Joseph filed a habeas petition in the California Supreme Court. He argued before that court that the Board's "unlawful practice of denying parole in 99.7% of initial parole hearings deprived Mr. Joseph of an individualized consideration for parole." The petition was denied without comment on December 1, 2010.

Joseph timely filed a pro se Petition for a Writ of Habeas Corpus to this Court. He subsequently retained counsel, who was appointed as attorney of record on February 25, 2011.

II. GROUNDS/CLAIMS

Joseph asserts the following grounds for habeas relief: (1) "the Board's unlawful practice of denying parole in 99.7% of initial parole hearings deprived Mr. Joseph of an individualized consideration for parole"; (2) the Board violated Joseph's due process rights because there was not "some evidence" in the record to support its finding that Joseph posed a current unreasonable risk to public safety; and (3) the amendments made by California's Marsy's law² violates the ex post facto and due process clauses of the state and federal constitutions.

On June 7, 2011, the Magistrate Judge assigned to this case issued an Order & Findings and Recommendations recommending that claims 2 and 3 be dismissed from the Petition as barred by Supreme Court precedent and a pending federal class action. Docket No. 5. On April 26, 2011, the Findings and Recommendations were re-designated as an order dismissing claims 2 and 3 from the Petition. Docket No. 15. In light of these proceedings, the only claim presentlybefore this Court is Joseph's first claim that "the Board's unlawful practice of denying parole in 99.7% of initial parole hearings deprived Mr. Joseph of an individualized consideration for parole."

III. 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," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63; 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous'" (citation and internal quotation marks omitted)).

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 therelevant state-court decision." Williams, 529 U.S. at 412. 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. Early v. Packer, 537 U.S. 3, 10 (2002). 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.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

To the extent that a petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v.Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether...