EDWARD M. CHEN, District Judge.
Kalifah E.D. Saif'ullah a/k/a Fernando Jackson filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. He claims that his constitutional right to be free of ex post facto laws was violated when the parole board applied a newly amended statute to set his next parole hearing in seven years. The matter is now before the Court for consideration of the merits of the habeas petition. For the reasons discussed below, the petition is
Mr. Saif'ullah was convicted in Los Angeles County Superior Court of kidnapping for ransom and was sentenced on March 7, 1980 to life imprisonment with the possibility of parole. His crime was committed in 1978. Mr. Saif'ullah's federal petition for writ of habeas corpus does not challenge the conviction or sentence imposed and instead challenges the decision of the Board of Parole Hearings to deny him parole at an August 26, 2011 parole suitability hearing. More specifically, he contends that the parole board's decision to set his next parole hearing in seven years, which is five years longer than the parole board could have set it under the former law, violated his right to be free of ex post facto laws. Before filing this action, Mr. Saif'ullah filed petitions for writ of habeas corpus in the state courts, which denied his claim without discussion.
This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the execution of a sentence for a prisoner incarcerated in Marin County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). State judicial remedies have been exhausted for the claim remaining for adjudication.
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254 is the proper jurisdictional basis for a habeas petition attacking the execution of the sentence by a petitioner in custody pursuant to the judgment of a State court. See White v. Lambert, 370 F.3d 1002, 1004 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010).
The Antiterrorism And Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[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 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
Here, the California courts rejected the ex post facto claim without discussion. "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (one-sentence order denying habeas petition analyzed under §2254(d)); Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013) (order that discusses state law claim but not federal claim rebuttably presumed to be rejection on the merits and therefore subject to § 2254(d)). Mr. Saif'ullah does not suggest any reason to overcome the presumption that the state court adjudicated his federal claim on the merits.
Prior to the November 2008 passage of Proposition 9 (also known as "Marsy's Law"), California Penal Code section 3041.5 provided for an initial parole hearing and thereafter annual subsequent parole suitability hearings, but allowed for longer periods between parole hearings under certain conditions. The parole board could schedule the next subsequent hearing in two years after a hearing at which parole was denied if the board found it was not reasonable to expect that parole would be granted at a hearing during the following year and if the board stated the basis for the finding. Cal. Penal Code § 3041.5(b)(2)(B) (West 2008) (former version of statute). The board also could schedule the next subsequent hearing in five years for a prisoner convicted of murder under similar circumstances. Cal. Penal Code § 3041.5(b)(2)(B) (West 2008) (former version of statute).
At issue here is the portion of Marsy's Law that amended California Penal Code section 3041.5 to lengthen the default periods for subsequent
Marsy's Law provides two routes to quicker parole consideration than the regularly scheduled subsequent parole hearing dates. First, section 3041.5(b)(4) now gives the board discretion to advance the date of the next parole hearing "when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided" by the statutory deferral periods. Second, section 3041.5(d)(1) now allows an inmate to petition the board to "exercise its discretion to advance a hearing . . . to an earlier date, by submitting a written request to the board, with notice, upon request, and a copy to the victim which shall set forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate."
The board may summarily deny a prisoner's petition to advance if the petition does not comply with these requirements or if the board believes the change in circumstances or new information is insufficient to justify the board's exercise of its discretion to advance the hearing date. Id. § 3041.5(d)(2). The inmate cannot make countless requests: section 3041.5(d)(3) limits him to one written request to advance a hearing during a three-year period.
Article I, section 10 of the United States Constitution prohibits the States from passing any ex post facto law. "To fall within the ex post facto prohibition, a law must be retrospective — that is, `it must apply to events occurring before its enactment' — and it `must disadvantage the offender affected by it,' by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations omitted). Some retroactive changes in parole laws may violate the Ex Post Facto Clause, but "not every retroactive procedural change creating a risk of affecting an inmate's terms or conditions of confinement is prohibited." Garner v. Jones, 529 U.S. 244, 250 (2000). The controlling inquiry in examining a change to a parole law is "whether retroactive application of the change . . . create[s] `a sufficient risk of increasing the measure of punishment attached to the covered crimes.'" Garner v. Jones, 529 U.S. 244, 250 (2000) (quoting Cal. Dept. of Corr. v. Morales, 514 U.S. 499, 509 (1995)). Speculative and attenuated risks of prolonging incarceration do not establish a violation of the Ex Post Facto Clause. Morales, 514 U.S. at 509.
Morales and Garner comprise the "clearly established Federal law, as determined by the Supreme Court," for § 2254(d) purposes. Both those cases upheld amendments that decreased the frequency of parole hearings.
In Morales, the Court held that a statutory amendment that decreased the frequency of parole hearings did not violate the Ex Post Facto Clause. Morales, 514 U.S. at 514. At the time of Morales' crime, he would have been entitled to subsequent hearings on an annual basis; later, California law was changed to authorize the parole board to defer subsequent suitability hearings for up to three years if the prisoner had been convicted of multiple homicides and the board found that it was "`not reasonable to expect that parole would be granted at a hearing during the following years....'" Id. at 503 (quoting Cal. Penal Code § 3041.5(b)(2) (West 1982)). The Court rejected the notion that the Ex Post Facto Clause forbade "any legislative change that has any conceivable risk of affecting a prisoner's punishment." Id. at 508. The Court also declined to impose a bright line rule or a single formula for identifying impermissible legislative changes. Id. at 508-09 & n.4. There was not an Ex Post Facto Clause violation in Morales because the legislative change had not "produce[d] a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id. at 509. The amendment applied only to multiple murderers ("a class of prisoners for whom the likelihood of release on parole is quite remote," id. at 510); had not increased the statutory punishment for the offense; had not changed the substantive formula for securing a reduction of the sentence; had not changed the standards for fixing the prisoner's minimum eligible parole date; and had not changed the standards for determining his suitability for parole or the release date to be set if he was found suitable. Id. at 507. The Morales Court saw it significant that there was a safety valve in place to allow parole suitability consideration earlier than the next regularly scheduled hearing date, i.e., an expedited hearing might be held upon the request of a prisoner, a sua sponte order from the board, or an order from an administrative appeal. See id. at 512.
In Garner, the Court considered another statutory amendment that decreased the frequency of parole suitability hearings and found it not to violate the Ex Post Facto Clause. The law at issue was a Georgia amendment that allowed the parole board to schedule a parole hearing for a life prisoner as infrequently as once every eight years, whereas the law in place at the time of the prisoner's crime required a parole hearing every three years. See Garner, 529 U.S. at 247.
Garner, 529 U.S. at 254.
Mr. Saif'ullah urges that the clearly established federal law from the Supreme Court for § 2254(d) purposes includes a third case, Peugh v. United States, 133 S.Ct. 2072 (2013). Although Peugh is an Ex Post Facto Clause case, it offers little help to the analysis of Mr. Saif'ullah's claim because it is so far afield factually. At issue in Peugh was "whether there is an ex post facto violation when a defendant is sentenced under [advisory Federal Sentencing] Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense." Peugh, 133 S. Ct. at 2078. The Supreme Court held that there was an Ex Post Facto Clause violation because the newly promulgated Guidelines "alter[ed] the substantive `formula' used to calculate the applicable sentencing range" and resulted in a longer sentence. Id. at 2088; see id. at 2079 (low end of newly promulgated Guidelines was 33 months higher than high end of Guidelines range in effect when defendant committed his crime). Peugh does not apply to the present case because it is a sentencing case rather than a parole case. Peugh also does not apply to the present case because the change in the frequency of parole hearings did not alter the substantive formula used to calculate Mr. Saif'ullah's sentence.
Two lower court cases provide some guidance, although they are not controlling in this habeas action governed by 28 U.S.C. § 2254(d)(1). In Gilman v. Schwarzenegger, 638 F.3d 1101, 1108-11 (9th Cir. 2011), the Ninth Circuit held that, although extensive changes to frequency of parole hearings required by Marsy's Law appeared to create a significant risk of prolonging plaintiffs' incarceration, the availability of advance hearings precluded federal injunctive relief because such availability sufficiently reduced the risk of increased punishment for prisoners under the standard set out in Garner. As respondent notes, Gilman was a § 1983 class action, rather than a habeas action, which means that it was not decided within the limits of § 2254(d), i.e., the Gilman court was not reviewing the reasonableness of a state court's decision and was not bound to limit the source of law to the holdings of the U.S. Supreme Court.
The other lower court case of interest is In re. Vicks, 56 Cal.4th 274 (Cal. 2013), in which the California Supreme Court held that Marsy's Law did not on its face or as applied violate the Ex Post Facto Clause in the U.S. Constitution or the California Constitution. Id. at 278-79, 317; see generally id. at 287 ("Our California [ex post facto] provision provides the same protections and is analyzed in the same manner as the federal provision").
The state court's rejection of Mr. Saif'ullah's Ex Post Facto Clause claim was not contrary to or an unreasonable application of clearly established law as set forth by the U.S. Supreme Court. In a nutshell, the state court reasonably could have determined that the statutory amendment providing for longer delays between scheduled parole hearings did not create a "sufficient risk of increasing the measure of punishment," Morales, 514 U.S. at 509, in light of the ability of the parole board and the prisoner to request that the next parole hearing date be advanced when circumstances warranted it. Determining that the petition to advance the hearing date worked as a safety valve to sufficiently mitigate the risk posed by the longer gaps between regularly scheduled parole hearings would have been entirely consistent with Morales and Garner, both of which declined to find Ex Post Facto Clause violations in similar systems where the next parole hearing date could be advanced upon changed circumstances.
Moreover, the California Supreme Court, in interpreting the statute, concluded that the parole board has the implicit authority "to direct its staff to review a particular prisoner's circumstances at any time to determine if there is a reasonable likelihood the prisoner is suitable for parole." Vicks, 56 Cal. 4th at 302. The state's highest court is the final authority on the law of that state. Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979). A state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Hicks v. Feiock, 485 U.S. 624, 629 (1988).
The state court in the instant case reasonably could have determined that these avenues to parole consideration on an expedited basis adequately reduce the concern that California prisoners might be suitable for parole today but unable to secure their release until 7, or 10, or 15 years from now, as might be the situation under a rigid system for parole hearings that had no provision for advancing the hearing date. Like Garner, 529 U.S. at 254, the state court reasonably could have concluded that the discretion of the Parole Board to advance the next parole hearing was an important factor supporting its conclusion that there was not a sufficient risk of an increase measure of punishment for Mr. Saif'ullah. See Gilman v. Schwarzenegger, supra, 638 F.3d at 1108-11. Further, as in Morales and Garner, the changes brought about by Marsy's Law did not substantively change parole for existing prisoners. Marsy's Law did "not alter the calculation of the sentence, the calculation of credits, the criteria relevant to the determination of suitability for parole, or the criteria relevant to the determination of the parole date once a prisoner is found suitable for parole." Vicks, 56 Cal. 4th at 307. As in Garner, the longer deferral of the next parole hearing can be made only upon a determination by the parole board that it is not reasonable to expect that the prisoner will be ready for parole in the intervening years. See Cal. Penal Code § 3041.5(b)(3)(C).
It is also consistent with the California Supreme Court's analysis in Vicks. Although Vicks was decided after Mr. Saif'ullah filed his federal habeas petition and therefore is not the decision to which § 2254(d) applies, one can consider whether the California Court of Appeal's rejection of Mr. Saif'ullah's claim would have passed muster under § 2254(d) if that court had followed an analytic path like that set out in Vicks. Thus, Vicks bolsters the conclusion that the California Court of Appeal's rejection of the ex post facto claim was not contrary to or an unreasonable application of Garner or Morales.
The state court reasonably could have concluded that, although the next regularly scheduled parole hearing will not be held as soon under the amended § 3041.5 as it would have been held under the former law, see Vicks, 56 Cal. 4th at 300, the amendment passes muster under Garner because the overall scheme functions in a manner that mitigates the risk that the board will fail to exercise its discretion at a point in time when it might have exercised its discretion under the prior scheme and concluded that a prisoner was suitable for parole. As Vicks explained,
Vicks, 56 Cal. 4th at 305-06. A rejection of the ex post facto claim using this analysis would not have been contrary to or an unreasonable application of Garner or Morales.
Mr. Saif'ullah urges in his traverse that an evidentiary hearing is necessary "to broaden the record and identify the number of prisoners who's maximum denial for parole are two years whose sentence was kidnapping for ransom or robbery and does not have a murder conviction and are being subjected to Marsy's Law." Docket # 10 at 2. His request for an evidentiary hearing is DENIED. The premise of the request is not factually correct: Mr. Saif'ullah's denial was for seven years, not two years. If he is suggesting that Marsy's Law does not apply to kidnappers, he is wrong on the law. Proposition 9 was not textually limited to murderers, and the amendment to section 3041.5 was not limited to murderers. Indeed, it was in a case brought by a prisoner serving an indeterminate life term on a kidnapping conviction that the California Supreme Court found that Marsy's Law did not violate prisoners' ex post facto rights. See In re. Vicks, 56 Cal. 4th at 284.
In any event, this Court will not hold an evidentiary hearing for Mr. Saif'ullah to develop and present for the first time evidence that might support an ex post facto claim when he did not present that evidence in state court. In reviewing the reasonableness of a state court's decision to which § 2254(d)(1) applies, a district court may rely only on the record that was before the state court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (holding that new evidence presented at evidentiary hearing cannot be considered in assessing whether state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law" under § 2254(d)(1)). Therefore, a federal court is precluded from supplementing the record with facts adduced for the first time at a federal evidentiary hearing when a petitioner's claim has been adjudicated on the merits in state court. See id. at 1399 ("It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.")
Mr. Saif'ullah urges in his traverse that statistical evidence from other cases shows high parole denial rates in the decade from 2000 to 2010. See Docket # 10 at 19-20. Like much of the traverse, this segment appears to be recycled from earlier briefs that pertain to claims other than an ex post facto claim. Parole denial rates do not in themselves establish a sufficient risk of increased punishment resulting from lengthier periods between parole hearings. Cf. Morales, 514 U.S. at 511 (high denial rates for prisoners at initial and subsequent hearings tended to show change in frequency of hearings did not significantly increase punishment). Similarly, the arguments regarding California's change from an indeterminate sentencing law to a determinate sentencing law (a) are irrelevant to the Marsy's Law issue, (b) are irrelevant to this petitioner because the law changed in 1977 before he committed the kidnapping in 1978 that resulted in his life sentence, and (c) when the law changed in 1977, indeterminate sentences were retained for certain crimes, such as murder and kidnapping for ransom. See In re Rodriguez, 14 Cal.3d 639, 643-46 (Cal. 1975) (discussing indeterminate and determinate sentencing law schemes). Another irrelevant point in the traverse is the argument about the sentencing matrix, see Docket # 10 at 21, which may have some relevance to a state due process analysis but not to the ex post facto claim now before the Court.
Mr. Saif'ullah has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and this is not a case in which "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is
The petition for writ of habeas corpus is
IT IS SO ORDERED.
In re Vicks, 56 Cal.4th 271, 311 (Cal. 2013).
Section 2281 of the California Code of Regulations provides the following guidelines for parole suitability consideration:
Cal. Code Regs. title 15, § 2281.
Jones v. Garner, 164 F.3d at 595 (quoting Georgia State Board of Pardons and Paroles Policy Statement No. 4.110).
