Case No. 5:16-cv-02441-JAK (SK).


United States District Court, C.D. California.

Editors Note
Applicable Law: 28 U.S.C. § 2254
Cause: 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (State)
Nature of Suit: 530 Habeas Corpus (General)
Source: PACER

Attorney(s) appearing for the Case

Richard Casados, Petitioner, Pro Se.

Board of Parole Hearings, Respondent, represented by Amy M. Roebuck , Office of Attorney General.


JOHN A. KRONSTADT, District Judge.



Petitioner, a California state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging the decision of the California Board of Parole Hearings ("Parole Board") to deny him parole and defer his next parole hearing for seven years. (ECF No. 1). The Court lacks jurisdiction over this action because Petitioner has not named the correct respondent and because his claims are not cognizable on federal habeas review. Furthermore, amendment to cure these jurisdictional defects would be futile because it is clear on the face of the Petition that Petitioner is not entitled to habeas relief. Therefore, the Petition is ordered dismissed without leave to amend, and this action ordered dismissed with prejudice.



Petitioner is serving an indeterminate sentence of 15 years to life following his 1989 conviction for attempted murder. (ECF No. 1 at 239). In 2008, California voters amended the parole statute through Proposition 9, commonly referred to as "Marsy's Law" and codified in California Penal Code § 3041.5. Marsy's Law amended the parole statute to increase the maximum period after a parole denial that a prisoner can be scheduled for his next parole hearing from five to 15 years, although an inmate can request that the hearing be advanced based on changed circumstances or new information. In June 2015, the Parole Board found Petitioner unsuitable for parole and deferred his next hearing for seven years. (ECF No. 1 at 214).

Petitioner challenged that decision in a state habeas petition, alleging that the Parole Board (1) deprived him of due process under Johnson v. United States, 135 S.Ct. 2551 (2015), when it found him unsuitable for parole, and (2) violated the Ex Post Facto Clause when it deferred his next parole hearing for seven years because Marsy's Law was enacted after his conviction. (ECF No. 1 at 243-45). In a reasoned decision, a California Superior Court rejected both claims, concluding that Petitioner's due process argument was a veiled sufficiency challenge to evidence that overwhelmingly supported the Parole Board's decision and finding no ex post facto violation in the application of Marsy's Law. (ECF No. 1 at 243-44). Petitioner's subsequent habeas petitions to the California Court of Appeal and California Supreme Court were denied without comment (ECF No. 1 at 246-47), making the opinion of the Superior Court the last reasoned decision for purposes of federal habeas review. See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Naming the Parole Board as respondent, Petitioner timely filed the present federal habeas petition alleging the same due process and ex post facto claims. (ECF No. 1 at 5-6, 54, 73, 115-19).



A. The Court Lacks Jurisdiction to Address the Petition

A federal habeas petitioner in custody pursuant to the judgment of a California court must name as the respondent the state officer having custody over him. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894-95 (9th Cir. 1996); 22 U.S.C. § 2242; Rule 2(a) of the Rules Governing Section 2254 Cases. When a petitioner names an incorrect respondent, the federal court is deprived of personal jurisdiction and must dismiss the petition. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Here, Petitioner named as respondent the California Board of Parole Hearings rather than his custodian, thereby depriving the Court of jurisdiction. See id.

In addition, even if the Petition had named the correct respondent, the Court would still lack jurisdiction because Petitioner's claims do not fall within the Court's federal habeas jurisdiction. Habeas jurisdiction exists only when a prisoner is challenging the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). If success on a prisoner's claims "would not necessarily lead to his immediate or earlier release from confinement," such claims do not fall within the "core of habeas corpus" and must therefore be dismissed for lack of jurisdiction. Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc), cert. denied, 137 S.Ct. 645 (2017). Here, a favorable judgment for Petitioner would not mean immediate release from confinement or a shorter stay in prison. Rather, success would only mean either speedier consideration of a new parole application or a new parole hearing, but it would not "necessarily spell speedier release" because the Parole Board may, in its discretion, decline to shorten the prison term. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Therefore, neither of Petitioner's claims "lies at the core of habeas corpus." Id.1

B. Petitioner Is Not Entitled to Federal Habeas Relief

Although the Court would ordinarily grant leave to amend a petition that names the incorrect respondent, see Stanley, 21 F.3d at 360, amendment would be futile, not only because the Petition fails to state a cognizable claim invoking the Court's habeas jurisdiction, but also because Petitioner's claims would not entitle him to relief even if they were construed as cognizable habeas claims. The Court cannot grant habeas relief for any claims adjudicated on the merits by the state court, unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law," as determined by the U.S. Supreme Court. 28 U.S.C. § 2254(d)(1). The California state courts' rejection of Petitioner's due process and ex post facto claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent.

First, although California prisoners retain a state liberty interest in parole, see Cooke v. Solis, 606 F.3d 1206, 1213 (2010), "[t]here is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners." Swarthout v. Cooke, 562 U.S. 216, 220 (2011). Thus, at a parole hearing, federal due process is satisfied if the prisoner is afforded an opportunity to be heard and informed of the reasons why parole was denied. See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 16 (1979). The only permissible constitutional inquiry into the denial of parole is "whether the procedures followed by the State were constitutionally sufficient." Swarthout, 562 U.S. at 219. Federal courts may not peer into the merits of a parole denial, and so long as the procedures for vindicating a prisoner's state liberty interest in parole were adequate, the federal due process inquiry ends. See id. at 220-222. Here, Petitioner attached to the Petition transcripts demonstrating that, with an attorney, he testified before the Parole Board at lengthy hearings and was provided a statement of reasons why parole was denied. (ECF No. 1 at 133-190, 210-213). The Due Process Clause requires nothing more. See Greenholtz, 442 U.S. at 16. To the extent that Petitioner challenges the correctness of the Parole Board's decision, that is a pure state law claim not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67 (1991).

The Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), does not change this conclusion. Johnson, which held that the residual clause of the Armed Career Criminal Act ("ACCA") was unconstitutionally vague under the Due Process Clause, applies only to federal prisoners who received increased sentences under the ACCA. Johnson, 135 S. Ct. at 2557, 2563. It is not applicable to Petitioner's state sentence under the California Penal Code, and no U.S. Supreme Court decision has extended the reasoning of Johnson outside the context of that specific case, much less extended it to state parole statutes. Therefore, to the extent that Petitioners' due process claim is predicated on an extension of Johnson, the state courts' rejection of that claim cannot have been contrary to or an unreasonable application of clearly-established federal law. See White v. Woodall, 134 S.Ct. 1697, 1706 (2014) ("`[I]f a habeas court must extend a rationale before it can apply to the facts at hand,' then by definition the rationale was not `clearly established' at the time of the state-court decision.") (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

Finally, the state courts' rejection of Petitioners' ex post facto challenge did not contravene or unreasonably apply clearly established federal law. An ex post facto claim cannot succeed unless the change to a challenged law "created a significant risk of increasing the punishment" of an inmate. Gilman v. Schwarzenegger, 638 F.3d 1101, 1106 (9th Cir. 2011) (quoting Garner v. Jones, 529 U.S. 244, 255 (2000)). The Ninth Circuit has already held that the deferral provisions of Marsy's Law do not violate the Ex Post Facto Clause because a decrease in the frequency of parole hearings alone does not create a "significant risk of lengthened incarceration," particularly when prisoners may seek to advance the hearing. See Gilman v. Brown, 814 F.3d 1007, 1016 (9th Cir. 2016), cert. denied sub nom. Madden v. Brown, 137 S.Ct. 650 (2017).



For the reasons set forth above, the Court lacks jurisdiction to address the Petition. Because amendment would be futile, the Petition is ordered dismissed without leave to amend, and Judgment dismissing this action with prejudice shall be entered accordingly.



1. In an appropriate case, with notice and the prisoner's consent, the Court may convert a habeas petition to a civil rights action under 42 U.S.C. § 1983. See Nettles, 830 F.3d at 935-36. However, because the petition here neither names the correct respondent nor asserts valid constitutional claims, the Court declines to construe the Petition as a § 1983 complaint. See, e.g., Glass v. Kernan, 2017 WL 2296960, at *3 (C.D. Cal. Apr. 18, 2017); Crane v. Beard, 2017 WL 1234096, at *4 n.6 (C.D. Cal. Apr. 3, 2017); Saffold v. Hartley, 2016 WL 5404399, at *2 (E.D. Cal. Sept. 27, 2016).


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