Opinion
CV 20-08286-JVS(LAL)
03-10-2023
TERRANCE A. HARPER, Petitioner, v. R. FISHER, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE LOUISE A. LA MOTHE UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, under the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
I. PROCEEDINGS
On September 9, 2020, Terrance A. Harper (“Petitioner”) filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, with an incomplete memorandum attached. On October 23, 2020, Petitioner filed the complete Memorandum (“Pet. Memo”) in support of the Petition. After a stay of these proceedings for Petitioner to fully exhaust his claims, Respondent filed an Answer to the now-exhausted Petition on March 7, 2022. Petitioner did not file a Traverse. Thus, this matter is ready for decision.
II. PROCEDURAL HISTORY
On November 8, 2016, the California Department of Corrections released Petitioner on parole after Petitioner had served more than 25 years in prison for murder. (Clerk's Transcript (“CT”) at 1, 9.) On December 26, 2017, Parole Agent Danny Acosta (“Acosta”) filed with the Los Angeles Superior Court (“Superior Court”) a Petition for Revocation of Petitioner's parole, alleging that: (1) on November 14, 2017, Petitioner tested presumptively positive for methamphetamine use which further testing confirmed; (2) on December 4, 2017, Petitioner failed to report to Acosta as instructed; (3) on December 6, 2017, a bystander found Petitioner's satellite monitoring device which appeared to have been cut off; (4) after Acosta made several unsuccessful attempts to contact Petitioner, on December 8, 2017, a Judicial Officer issued a warrant for Petitioner's arrest for absconding from parole supervision; and (5) on December 19, 2017, authorities arrested Petitioner for absconding from parole supervision and also for petty theft from a Target store. (CT at 2-8, 15.) Petitioner allegedly admitted these allegations, including cutting off his monitoring device, in a December 21, 2017 interview with Acosta. (CT at 3-6.)
Cal. Penal Code § 484(A). The misdemeanor charge from Petitioner's petty theft arrest filed in Los Angeles Superior Court Case No. 7IN04369 reportedly was dismissed in the interest of justice on January 26, 2018, when Petitioner pled nolo contendere to a lesser “infraction” of petty theft with a value taken under $50 (Cal. Penal Code § 490.1). See Pet. Memo at 6, 10 (discussing same); see also Pet. Memo at 15-18 (Superior Court minutes from the petty theft case).
On December 26, 2017, the Superior Court reviewed the Petition for Revocation and without a hearing found probable cause to support Petitioner's parole revocation and preliminarily revoked Petitioner's supervised release. (CT at 16-17.) At Petitioner's first arraignment hearing on December 28, 2017, the Superior Court appointed counsel for Petitioner and continued the preliminary revocation. (CT at 18-20.) Petitioner reportedly stipulated at that hearing that there was probable cause for the alleged violations. (CT at 20.) At a subsequent arraignment and plea hearing on January 18, 2018, after Petitioner reportedly twice had waived time for arraignment (see CT at 20, 23), Petitioner denied the allegations for the charge of absconding from parole supervision. (CT at 24-26; Reporter's Transcript (“RT”) at 301-02.) The Superior Court again asked if Petitioner was stipulating to probable cause, and Petitioner's counsel replied, “Yes,” with no reported comment or objection from Petitioner. (RT at 302.)
After several continuances and waivers of time to proceed with Petitioner's parole revocation hearing, Petitioner had his parole violation hearing on October 17, 2018. (CT at 114-20; RT at 4801-93.) Upon hearing testimony from Acosta, Emerson Galicia (a Target asset protection employee), and Petitioner, and considering argument from counsel, the Superior Court found by a preponderance of the evidence that Petitioner had violated his parole conditions and found true the allegations that Petitioner had absconded from parole supervision, committed petty theft, and failed to participate in the Electronic In-home Detention (“EID”) program. (CT at 114-15, 118-19; RT at 4803-93.) The Superior Court found “not true” the allegation that Petitioner had used methamphetamine. (CT at 114; RT at 4890-91.) The Superior Court revoked Petitioner's parole and remanded him to the custody of the California Board of Parole Hearings for further consideration. (CT at 116-17, 119-20; RT at 4893.)
See CT at 27-113; RT at 601-02 (Petitioner's counsel noting at the time of waiver that he had been waiting for Petitioner's petty theft case to resolve and was seeking discovery); RT at 1501-06 (Petitioner's counsel noting at the time of waiver that (1) Petitioner wanted to represent himself due to strategic differences with counsel and had a Faretta form (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)), but after discussion with the Superior Court and counsel Petitioner elected to continue with counsel, and (2) counsel was researching whether to call Acosta's supervisor as a witness; Petitioner consented to the waiver); RT at 2101-02 (Petitioner's counsel noting at the time of waiver that counsel had further preparation to do; Petitioner consented to the waiver); RT at 3001-02 (Petitioner's counsel noting at the time of waiver that additional work needed to be done; Petitioner consented to the waiver); RT at 3302 (Petitioner consenting to the waiver); RT at 3603 (Petitioner consenting to the waiver); RT at 3902 (Petitioner's counsel indicating there was new discovery that day).
Petitioner appealed the parole revocation to the California Court of Appeal. (CM/ECF Dkt. No. 18 (Lodgments in support of Respondent's Motion to Dismiss) at Lodgments 1-2 (raising only some of the claims raised in the current Petition).) On January 23, 2020, the California Court of Appeal affirmed the order revoking Petitioner's parole in a reasoned decision after independently reviewing the record. (Lodgment 3.)
Petitioner then filed a petition for review in the California Supreme Court. (Lodgment 4 (raising only some of the claims raised in the current Petition).) On April 15, 2020, the California Supreme Court denied review. (Lodgment 5.)
On or about May 11, 2021, Petitioner filed a state habeas petition with the California Supreme Court to exhaust his claims raised in his current Petition that were not presented to the state courts on direct review. (CM/ECF Dkt. Nos. 29 at 8-103, 29-1 at 1-112 (copy of petition).) On September 1, 2021, the California Supreme Court denied the petition on procedural grounds, citing In re Waltreus and In re Dixon. (CM/ECF Dkt. No. 29-1 at 113.) Respondent admits the claims raised in the Petition are now exhausted. (Answer at 1.)
The Petition in this case reports that Petitioner also filed a state habeas petition with the Los Angeles Superior Court on or about July 8, 2020, which had not been assigned a case number, raising a due process claim and claims based on “new evidence.” (Petition at 8.) Available minutes from petitioner's parole revocation proceedings do not reflect the filing of a habeas petition. (Lodgment 6 (Superior Court's minutes through September 2, 2020).)
62 Cal. 2d 218, 225 (1965) (courts will not entertain habeas corpus claims that were rejected on appeal).
41 Cal. 2d 756, 759 (1953) (courts will not entertain habeas corpus claims that could have been, but were not, raised on appeal).
III. SUMMARY OF THE EVIDENCE PRESENTED AT PETITIONER'S PAROLE REVOCATION HEARING
This Court has independently reviewed the state court record. Based on this review, this Court adopts the background discussion of the California Court of Appeal's opinion on direct appeal in this case as a fair and accurate summary of the evidence presented at Petitioner's parole revocation hearing.
“Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary. . . .” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing 28 U.S.C. § 2254(e)(1)). Thus, Ninth Circuit cases have presumed correct the factual summary set forth in an opinion of the state appellate court under 28 U.S.C. § 2254(e)(1). See, e.g., Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009) (citations omitted). This Court has cited to the record supporting the California Court of Appeal's summary in this case, since the Court of Appeal's opinion presented the summary as background rather than as summary of the evidence from Petitioner's revocation hearing.
[Petitioner] was given, and signed, written notice of the conditions of his parole on November 9, 2016. [RT at 4803-04, 4809, 4837; see also CT at 11-14 (conditions).] Those conditions included (1) that he must comply with all of the instructions from his parole agent; (2) that he must not engage in any conduct prohibited by law; and (3) several special conditions, including that he not consume, possess, or have access to any alcoholic beverages. [Id.]
On October 12, 2017, [Petitioner] tested positive for methamphetamine, and was placed on electronic in-house detention, which required the use of an electronic in-home device (EID). [RT at 4805-06.] An EID has two components: one is placed on defendant's ankle, and the other is plugged into an electrical outlet in [Petitioner's] residence. [RT at 4816, 4827.] Unlike a GPS device, an EID only tracks [Petitioner] when he is within range of the component plugged in at his residence. [RT 4816, 4818.] [Petitioner] was instructed that he had to be in his residence from 10:00 p.m. to 5:00 or 6:00 a.m., and the EID was used to determine whether he complied with those instructions. [RT at 4807, 4815, 4834; see also Pet. Memo at 19 (EID conditions).] He also was instructed to charge the battery in his ankle bracelet for one hour every 12 hours. [RT at 4808, 4810, 4828.] If the battery was not timely recharged, it would go into low battery warning, and then to dead battery status; when the EID is in dead battery status, [Petitioner's] location cannot be monitored. [RT at 4808, 4811, 4815.]
Initially, [Petitioner's] curfew ended at 5:00 a.m. due to his work hours; it subsequently was changed to 6:00 a.m. [RT at 4849.]
Acosta testified that an EID may have a dead battery if the charging mechanism is non-operative. (RT at 4811.) Acosta agreed that the available charging history showed the mechanism was working. (RT at 4812-13, 4815.)
The EID was monitored by Satellite Tracking of People LLC, which provided reports to Parole Agent Danny Acosta, [Petitioner's] parole agent. [RT at 4811-12.] The reports showed when the EID was charging, when it went into low or dead battery status, and when [Petitioner] was in his residence; Acosta also would get an email alert if the EID went into low or dead battery status or if [Petitioner] was not in his residence during his curfew. [RT at 4812-15, 4844.] Acosta received alerts that [Petitioner's] EID had a dead battery on October 31, November 7, November 12, November 14, and December 3 of 2017. [RT at 4819.] The tracking reports show that on at least one of those occasions [Petitioner] had not charged the battery for more than 24 hours. [RT at 4823.]
The tracking reports also showed that Petitioner violated curfew from November 27-30, 2017. (RT at 4833-34.)
On November 14, 2017, [Petitioner] was drug-tested. [RT at 4845-46.] The preliminary results came back positive for amphetamine and methamphetamine. [RT at 4846-47.] [Petitioner] disputed the results, asserting that they must have been caused by the Claritin D 24 he was taking, and he demanded that the test be sent to a lab for retesting. [RT at 4847, 4850, 4868-69.] Acosta sent the test to a lab in San Diego, and received the results on November 29, 2017; he testified that the results were conclusive for methamphetamine and amphetamines. [RT at 4847, 4855.]
Acosta did not have a copy of the report from the lab at the parole revocation hearing, and it was not introduced into evidence. [RT at 4855, 4885-86.] This Court notes that any issue with Acosta's testimony about the laboratory findings is not material, since the Superior Court found “not true” the allegation that Petitioner had used methamphetamine. (CT at 114; RT at 4890-91; see United States v. Comito, 177 F.3d 1166, 1170-71 (9th Cir. 1999) (if hearsay evidence is not important to the finding of a parole violation, any error in admitting the evidence can be considered harmless).)
On December 1, 2017, Acosta called [Petitioner] and instructed him to report to the parole office on December 4. [RT at 4804-05.] [Petitioner] failed to report as instructed. [RT at 4805, 4823.] The next day, Acosta went to [Petitioner's] last known residence, and [Petitioner] was not there; however, Acosta did not inspect the residence to determine if [Petitioner] still lived there. [RT at 4824, 4826, 4832, 4838-39, 4851.] Acosta also called [Petitioner's] phone number several times and left messages until [Petitioner's] voicemail was full. [RT at 4851.]
On December 6, 2017, Acosta was notified that an EID had been turned into the Compton police station. [RT at 4829, 4832, 4841.] Acosta recovered the device, and determined it was [Petitioner's] because it had the same serial number as the device that had been attached to [Petitioner's] ankle. [RT at 4829-30, 4841-42.] The EID appeared to have been cut off. [RT at 4807.] (Acosta testified that when he later interviewed [Petitioner], [Petitioner] admitted that he had cut the EID off his ankle. [RT at 4838.]) [Petitioner] had been instructed that he was not to tamper with the EID. [RT at 4832-33.]
On December 19, 2017, an undercover security agent at a Target store in Inglewood saw [Petitioner] put large quantities of several items in his shopping basket, walk past the checkout lanes, and exit the store. [RT at 4857-59.] The security officer stopped him and asked him to come back inside. [RT at 4859.] [Petitioner] had in excess of $700 worth of merchandise that he had not paid for. [RT at 4859.] [Petitioner] testified that it had not been his intent to steal the items; he explained he intended to get caught at the door, where he would turn himself in because he did not trust turning himself in to Acosta. [RT at 4874-75, 4878-79.] He pleaded nolo contendere to [a petty theft] infraction. [RT at 4880.] (Lodgment 3 at 2-5.)
IV. PETITIONER'S CLAIMS
Petitioner raises the following claims for habeas corpus relief:
(1) The Superior Court denied Petitioner due process at and before his parole revocation hearing;
(2) Petitioner's appointed counsel for the revocation hearing rendered ineffective assistance;
(3) The presentation of false evidence at the parole revocation hearing wrongfully denied Petitioner of his liberty interest in parole;
(4) The Superior Court denied Petitioner equal protection by applying an erroneous standard for absconding from parole to his case; and
(5) The prosecution maliciously prosecuted Petitioner and engaged in misconduct. (Petition at 5-6.)
V. STANDARD OF REVIEW
The standard of review that applies to Petitioner's claims is stated in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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). If these standards are difficult to meet, it is because they were meant to be. As the United States Supreme Court stated in Harrington v. Richter, while the AEDPA “stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings[,]” habeas relief may be granted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts” with United States Supreme Court precedent. Further, a state court factual determination must be presumed correct unless rebutted by clear and convincing evidence.
562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
B. Sources of “Clearly Established Federal Law”
According to Williams v. Taylor, the law that controls federal habeas review of state court decisions under the AEDPA consists of holdings (as opposed to dicta) of Supreme Court decisions “as of the time of the relevant state-court decision.” To determine what, if any, “clearly established” United States Supreme Court law exists, a federal habeas court also may examine decisions other than those of the United States Supreme Court. Ninth Circuit cases “may be persuasive.” A state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law, if no Supreme Court decision has provided a clear holding relating to the legal issue the habeas petitioner raised in state court.
529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Deck v. Jenkins, 814 F.3d 954, 978 n.3 (9th Cir. 2016) (citing Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 1999)); LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th Cir. 2000).
Duhaime, 200 F.3d at 600.
Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007) (“Where the Supreme Court has not addressed an issue in its holding, a state court adjudication of the issue not addressed by the Supreme Court cannot be contrary to, or an unreasonable application of, clearly established federal law.”); see also Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (in the absence of a Supreme Court holding regarding the prejudicial effect of spectators' courtroom conduct, the state court's decision could not have been contrary to or an unreasonable application of clearly established federal law).
Although a particular state court decision may be both “contrary to” and an “unreasonable application of” controlling Supreme Court law, the two phrases have distinct meanings under Williams.
A state court decision is “contrary to” clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. If a state court decision denying a claim is “contrary to” controlling Supreme Court precedent, the reviewing federal habeas court is “unconstrained by § 2254(d)(1).” However, the state court need not cite or even be aware of the controlling Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (citing Williams, 529 U.S. at 405-06); Anderson v. Gipson, 902 F.3d 1126, 1132 (9th Cir. 2018).
Williams, 529 U.S. at 406.
Early, 537 U.S. at 8.
State court decisions that are not “contrary to” Supreme Court law may be set aside on federal habeas review only “if they are not merely erroneous, but ‘an unreasonable application' of clearly established federal law, or based on ‘an unreasonable determination of the facts.'”Accordingly, this Court may reject a state court decision that correctly identified the applicable federal rule but unreasonably applied the rule to the facts of a particular case. However, to obtain federal habeas relief for such an “unreasonable application,” a petitioner must show that the state court's application of Supreme Court law was “objectively unreasonable.” An “unreasonable application” is different from merely an incorrect one.
Id. at 11 (citing 28 U.S.C. § 2254(d)).
See Williams, 529 U.S. at 406-10, 413.
Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“Under § 2254(d)(1)'s unreasonable application clause, then, 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 be objectively unreasonable.”) (internal quotation marks and citations omitted); Woodford v. Visciotti, 537 U.S. 19, 27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002).
Williams, 529 U.S. at 409-10.
Petitioner raised only some of his claims with both the California Court of Appeal and California Supreme Court on direct review, and the California Supreme Court denied review without comment. (Lodgments 2-5.) The California Supreme Court's “silent” denial of those claims is considered as being “on the merits” and to rest on the California Court of Appeal's last reasoned decision. This Court therefore has reviewed the Court of Appeal's decision discussing those claims under the AEDPA standards set forth above.
See Ylst v. Nunnemaker, 501 U.S. 797, 803-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); see also Wilson v. Sellers, U.S., 138 S.Ct. 1188, 1192, 200 L.Ed.2d 530 (2018) (federal courts should “look through” unexplained decision to the last reasoned state-court decision providing a relevant rationale).
For the claims that Petitioner raised for the first time with the California Supreme Court, either in his petition for review or state habeas petition, this Court has reviewed those claims de novo. The California Supreme Court did not reach the merits of those claims. (Lodgment 5 (denying discretionary review); CM/ECF Dkt. No. 29-1 at 113 (denying on procedural grounds).) On de novo review, Petitioner bears the burden of establishing that he is “in custody in violation of the Constitution or laws or treaties of the United States.” In evaluating Petitioner's claims de novo, this Court must defer to any factual findings the state courts made,and may consider the Court of Appeal's reasoning and Superior Court's rulings.
“Because the [California] courts did not reach the merits of [these] claim[s], federal habeas review is not subject to the deferential standard that applies under AEDPA to ‘any claim that was adjudicated on the merits in State court proceedings.' Instead, the claim[s] [are] reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (citations omitted); see also Answer at 10-11 (agreeing this Court may review these claims de novo).
28 U.S.C. §§ 2241(c)(3), 2254(a); Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938).
See Cone, 556 U.S. at 472; Frantz v. Hazey, 533 F.3d 724, 737-39 (9th Cir. 2008) (en banc) (even when a state court does not address a constitutional issue, where the reasoning of the state court is relevant to resolution of the constitutional issue, that reasoning must be part of a federal habeas court's consideration).
This Court has read, considered, and rejected on the merits all of Petitioner's contentions. This Court discusses Petitioner's principal contentions herein.
A. Due Process Violations
In Claim One, Petitioner raises several due process violations which this Court addresses in a slightly different order than presented. Petitioner argues that the Superior Court deprived him of: (a) a timely probable cause hearing; (b) a timely parole revocation hearing following his arrest; (c) material evidence prior to the revocation hearing; (d) the right to subpoena relevant witnesses for the revocation hearing; (e) the right to present evidence at the revocation hearing; (f) the right to cross examine adverse witnesses at the revocation hearing; and (g) the effect of his plea agreement in the related petty theft case, namely that his petty theft infraction would not be used as a ground to revoke Petitioner's parole. (Petition at 5; Pet. Memo at 2-6 (citing Morrissey v. Brewer ).)
408 U.S. 471, 472, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
Petitioner specifically alleges that he did not waive a probable cause hearing, and that he complained to his counsel about all the delays before having his revocation hearing. (Pet. Memo at 5.) Petition alleges that the prosecution and Petitioner's counsel had “critical evidence” in defense of the EID-related evidence and testimony regarding Petitioner's dead battery status (namely, (1) a certified letter by Ashley S. Fuller addressed to Petitioner's counsel and (2) a November 14, 2017 “Supervision Contact” report, showing that Acosta replaced Petitioner's EID faulty ankle monitor on that date with a second monitor, to support Petitioner's testimony that he did not violate his obligation to charge his EID ankle monitor) that was not presented at his hearing. (Pet. Memo at 5, 10-11; see also Pet. Memo at 20, 22 (omitted evidence).) Petitioner argues this evidence would have contradicted Acosta's assertedly false testimony and related evidence suggesting that Petitioner's EID ankle monitor was never replaced, and would have undermined Acosta's credibility. (Pet. Memo at 3-4.)
Petitioner does not allege how the Superior Court limited any right to subpoena witnesses, present evidence, or cross examine adverse witnesses. (Pet. Memo at 2-6.) This Court addresses these related allegations in detail as part of Petitioner's ineffective assistance of counsel claim (Claim Two) below. This Court is addressing Petitioner's due process claim based on the introduction of assertedly false evidence in Claim Three below.
1.Background
Appointed counsel represented Petitioner throughout Petitioner's parole revocation proceedings. (CT at 18-121; RT at 1-4393.) Either through his counsel or directly, Petitioner twice stipulated that there was probable cause for the alleged parole violations, and agreed to postpone his parole revocation hearing by waiving the time within which to have the hearing so that Petitioner's counsel could prepare. (CT at 20, 23, 27-113; RT at 302, 601-02, 1501-06, 2101-02, 3001-02, 3302, 3603, 3902.) At his hearing, Petitioner's counsel cross examined the witnesses against Petitioner, Petitioner gave the only testimony in his defense, the prosecution submitted the only exhibits in evidence, and both the prosecution and defense gave closing arguments before the Superior Court reached its decision. (CT at 114, 118-20; RT at 4838-50, 4856, 4860-62, 4863-82, 4883-93.)
In his defense, Petitioner disputed Acosta's testimony concerning his alleged EID-related violations, suggesting that his EID ankle monitor was faulty and therefore he was not in violation for failing to charge the device. (RT at 4865.) Petitioner testified that Acosta ordered him to report for alleged EID-related violations on November 7, 2017. (RT at 4864.) Petitioner said he reported as ordered and demonstrated for Acosta that his EID ankle monitor would not hold a charge. (RT at 4865-66.) Acosta reportedly confirmed that the ankle monitor was faulty and replaced it with another monitor. (RT at 4865-67; see also Pet. Memo at 20 (Supervision Contact noting that Acosta replaced the faulty ankle monitor on November 14, 2017).) As detailed above, Acosta testified that Petitioner had been in violation of charging requirements at various times from October 18, 2017, through December 3, 2017. (RT at 4813, 4818-23.) Contrary to Petitioner's testimony and the evidence Petitioner presented on appeal, Acosta denied that Petitioner had two different EID ankle monitors from the time he placed Petitioner on EID until Petitioner's arrest, or that he changed out Petitioner's EID ankle monitor. (RT at 4839, 4850.) Acosta did not testify whether he required Petitioner to report on November 7, 2017, but he did admit that he changed Petitioner's curfew on that date. (RT 4849-50.)
Petitioner testified that he had pleaded nolo contendere to a petty theft infraction. (RT at 4880.) However, he did not mention anything about an agreement not to use that infraction in his pending revocation proceedings. (RT at 4880-81). Petitioner testified that after Acosta told him that Acosta was going to get a warrant for Petitioner's arrest, Petitioner intentionally went to the Target store (knowing it had cameras) and was “animated” with putting “stuff” in his basket that he was not planning to pay for - he planned on getting caught at the door to turn himself in because Petitioner did not trust turning himself in to Acosta. (RT at 4877-79.) In closing, Petitioner's counsel did not argue that there was any agreement in Petitioner's petty theft case that the petty theft would not be used as part of the revocation proceedings. (RT at 4883-88.)
In finding true three of the allegations against Petitioner for violating his parole conditions, the Superior Court relied on the following evidence: (1) Absconding from Parole - Acosta's testimony that he could not locate Petitioner at Petitioner's residence, was unable to reach Petitioner by phone, and had no contact from Petitioner after Acosta instructed Petitioner to report, as well as Petitioner's testimony regarding why he took the steps to turn himself in by taking items from the Target store (RT at 4890); (2) Petty Theft - accepting Petitioner's reasoning for turning himself in as true (which the Superior Court noted was not a legal excuse for Petitioner's actions), Petitioner admitted committing the theft by going to the store, taking items, and leaving with no intention of paying for the items (RT at 4891-92); and (3) Failure to Participate in the EID Program - evidence that Petitioner did not charge his ankle monitor properly (considering Petitioner's then-unsupported testimony that the monitor was defective), as well as evidence that Petitioner had on numerous occasions returned home after his 10:00 p.m. curfew, and eventually removed his EID monitor without legal justification (RT at 4892-93).
2.State Court Decision
The California Court of Appeal addressed some of Petitioner's due process claims in its decision affirming the Superior Court's order. The Court of Appeal found no merit to Petitioner's arguments that he was denied the right to present witnesses and present evidence at a probable cause hearing since Petitioner twice stipulated to probable cause for the alleged violations. (Lodgment 3 at 5-6 (referencing CT at 19-20, RT at 302).)
The Court of Appeal acknowledged that documents Petitioner provided on appeal (which included the Fuller letter, see Lodgment 2 at 5) confirmed that Petitioner's first EID ankle monitor was defective and replaced, but otherwise did not assist Petitioner's defense. (Lodgment 3 at 7 n.3.) The Court of Appeal concluded that such evidence would not change the result of the revocation hearing because the Superior Court's finding of failure to participate in the EID program was based on more than just the evidence of the dead battery status - the Superior Court also relied on evidence of numerous curfew violations and Petitioner's removal of his EID ankle monitor. (Lodgment 3 at 9).
Regarding the alleged plea agreement in Petitioner's petty theft case, the Court of Appeal found no evidence in the record regarding the terms of any purported agreement to support Petitioner's contention. (Lodgment 3 at 8.)
3.Legal Standard
“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” However, once an inmate has been released on parole, his “liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.”
Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).
Morrissey v. Brewer, 408 U.S. at 482; see also Benny v. United States Parole Comm'n, 295 F.3d 977, 985 (9th Cir. 2002).
Parole revocation proceedings are “not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.”“Revocation proceedings implicate fewer rights because revocation is not new punishment for a new crime. It is part of the whole matrix of punishment which arises out of a defendant's original crime, of which the defendant has already been convicted after a trial subject to the full panoply of constitutional guarantees.”
Morrissey, 408 U.S. at 480.
United States v. Hulen, 879 F.3d 1015, 1019 (9th Cir.), cert. denied, 139 S.Ct. 251 (2018) (internal quotation marks and citation omitted).
“[A] parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.” As cited by Petitioner, the Supreme Court in Morrissey set forth the “minimum requirements of due process” at each of these two stages.
Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey, 408 U.S. at 484-90 (discussing process due; observing that the interest of both the State and parolee is furthered by “an effective but informal hearing”).
Morrissey, 408 U.S. at 485-90.
“The first stage occurs when the parolee is arrested and detained, usually at the direction of his parole officer.” At this stage, “due process requires that after the arrest, the determination that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case.” The parolee should be given notice of the preliminary hearing and the purpose of the hearing, including what parole violations are alleged. The parolee may speak on his behalf and offer evidence or witnesses to give relevant information to the hearing officer. The parolee may request to question a person who gives adverse information. The parolee is entitled to a written summary of the proceedings and a decision on the record.
Id. at 485.
Id.
Id. at 486-87.
Id. at 487.
Id.
Id.
The second stage is the parole revocation hearing. The parolee is entitled to written notification of the alleged parole violations, disclosure of the evidence against him, the opportunity to be heard and to present witnesses and evidence and to cross-examine adverse witnesses. “The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody.” The parolee is also entitled to a “neutral and detached” hearing body that must submit a written statement of the evidence relied on and the reasons for revoking parole.
Id. at 487-88.
Id. at 489.
Id. at 488 (observing that a lapse of two months would not be unreasonable).
Id. at 489.
If a parolee is denied any of the foregoing safeguards, he must show prejudice resulting from the denial to merit relief. “The burden is on the parolee to demonstrate that the failure to provide a particular safeguard was under the circumstances of his case so prejudicial as to be a denial of due process.” Prejudice does not exist where, for instance, where a parolee admits parole violations unrelated to the alleged due process violation.
Standlee v. Rhay 557 F.2d 1303, 1307-08 (9th Cir. 1977) (citations omitted); see also Smith v. United States Parole Comm'n, 875 F.2d 1361, 1368-69 (9th Cir. 1988) (same). For example, parolees challenging the timeliness of parole hearings must show both unreasonable delay and prejudice to obtain relief. See Cornell v. Hawaii, 37 F.4th 527, 535 (9th Cir. 2022); compare Jessup v. United States Parole Comm'n, 889 F.2d 831, 835 (9th Cir. 1989) (parolee who was not informed of possible consequence of a parole revocation was not require to show prejudice to establish a due process violation - the lack of notice was all the prejudice necessary).
Townsend v. Winters, 2007 WL 433248, at *6 (S.D. Cal. Jan. 29, 2007) (admitted parole violations by themselves are sufficient to justify parole revocation).
4.Analysis
Petitioner is not entitled to federal habeas relief on his due process claims. It appears that Petitioner was afforded the protections outlined in Morrissey. As the California Court of Appeal found, Petitioner, with the assistance of counsel, twice waived a probable cause hearing (and the accompanying process he would have been due). Although Petitioner may have complained to his counsel about delays before having his revocation hearing, the record reflects that Petitioner was present when time waivers occurred and, in some instances explicitly agreed to the waivers on the record. In other instances he did not voice any objection when his counsel requested and was granted more time to prepare for Petitioner's revocation hearing. On this clear record,
Petitioner has not shown a due process violation, nor has he shown any prejudice from his waivers.
The purpose of a preliminary hearing is “to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed the acts that would constitute a violation of parole conditions.” Here, Petitioner was given a full evidentiary revocation hearing with counsel, where undisputed evidence showed that Petitioner violated his parole by failing to report to Acosta as ordered on December 4, 2017, returning home after that date only briefly to get clothes, cutting off his assigned EID ankle monitor, and remaining at large until Petitioner purposefully committed petty theft at the Target store to turn himself in. (RT at 4823, 4829-33, 4874-81; see also CT 11-14 (parole conditions); Pet. Memo at 19 (EID conditions).) From this evidence, a rational trier of fact could have found that Petitioner violated his parole terms. That finding supports the Superior Court's revocation of Petitioner's parole.
Morrissey, 408 U.S. at 485.
See United States v. Woloszyn, 2022 WL 17484262, at *1 (9th Cir. 2022) (“On a sufficiency-of-the-evidence challenge to a supervised release revocation, we ask whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of a violation by a preponderance of the evidence.”) (quoting United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010)).
Petitioner's allegation that neither the prosecution nor his counsel presented Fuller's letter at his hearing also does not suggest a due process violation. The Due Process Clause does not guarantee the right to introduce all relevant evidence. The Court of Appeal considered Fuller's letter and other evidence confirming that Petitioner's first EID ankle bracelet was defective (and therefore could have been the cause of the “dead battery” statuses the Superior Court noted as one reason for finding true the allegation that Petitioner had failed to participate in the EID Program). However, as detailed above, the Superior Court also relied on the fact that Petitioner cut off his EID ankle bracelet after Petitioner failed to report to Acosta as ordered (facts Petitioner did not address or dispute when he testified) in finding this allegation true. (RT at 4892-93.) On this record, the Court of Appeal reasonably concluded that the evidence supporting Petitioner's testimony that his first EID ankle bracelet was defective would not have assisted Petitioner's defense. Petitioner has not shown a due process violation or prejudice from the failure to introduce this evidence.
See Montana v. Egelhoff, 518 U.S. 37, 41-42, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996).
Petitioner's allegation that the Superior Court failed to honor the alleged plea agreement from Petitioner's petty theft case that the theft not be considered as part of the parole revocation proceedings also does not suggest a due process violation. As the Court of Appeal found, there was no evidence in the available record from Petitioner's petty theft proceedings and from the revocation proceedings (including Petitioner's testimony and his counsel's argument) to suggest there was any such agreement. Petitioner testified that he pleaded nolo contendere to an infraction in that case, but neither he nor his counsel mentioned anything about any promise made to Petitioner as part of that plea. Without any evidence suggesting such a promise,Petitioner cannot show that the Court of Appeal's denial of this claim was contrary to, or an unreasonable application of, clearly established federal law or an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Nor can Petitioner show any prejudice. While the Superior Court considered evidence of Petitioner's petty theft in finding reasons to revoke Petitioner's parole, there is no suggestion that this evidence was so prejudicial to rise to a due process violation given the uncontested evidence regarding Petitioner's failure to report to Acosta as ordered, disappearance, and later removal of his EID ankle monitor.
“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); compare Johnson v. Finn, 468 Fed. App'x 680, 684 (9th Cir. 2012) (unpublished decision rejecting claim that plea agreement had been violated by decision to reverse parole suitability finding where petitioner presented no evidence to show that the plea agreement contained any promise regarding parole).
See 28 U.S.C. § 2254(d). For the same reason, if Petitioner is alleging that the Superior Court limited any right to subpoena witnesses, present evidence, or cross examine adverse witnesses, he has not presented any evidence to suggest a due process violation. To the contrary, the record shows that Petitioner cross examined witnesses and presented his own testimony in his defense.
Petitioner also claims that the Superior Court violated California law and regulations by finding his petty theft infraction as a ground to revoke parole. (Pet. Memo at 6 (citing Cal. Penal Code §§ 490.1, 19.8 and 15 Cal. Code Regs. § 3000).) Petitioner presented this claim first to the California Supreme Court in his habeas petition (CM/ECF Dkt. 29 at 22), which that court rejected as procedurally defaulted. Considering this claim de novo, Petitioner has not established a constitutional violation. 28 U.S.C. §§ 2241(c)(3), 2254(a). At most Petitioner raises a claim of state law error not cognizable on federal habeas review. See Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (“we cannot review this contention as a matter of state law because 28 U.S.C. § 2254(a). . . authorizes the federal courts to grant habeas corpus relief only for violations of federal law”).
For the foregoing reasons, the Claim One does not merit federal habeas relief.
B. Ineffective Assistance of Counsel
In Claim Two, Petitioner argues that his counsel rendered ineffective assistance by: (1) delaying the revocation hearing; (2) not informing Petitioner of the probable cause stipulation or contesting probable cause; (3) refusing to submit evidence to refute the absconding from parole and failure to participate in the EID program allegations (namely, (A) Fuller's letter and the November 14, 2017 Supervision Contact report, showing that Petitioner's EID ankle monitor was faulty and replaced; (B) witnesses Adrianne Reeves and Sharon Reeves who were with Petitioner every day and could have testified that Petitioner's EID ankle monitor was faulty; (C) witness Melanie Reyes who could have testified about Petitioner's EID ankle monitor being replaced; and (D) an expert witness from the satellite tracking company who could have testified about Petitioner's EID ankle monitor being replaced); (4) failing to inform the Superior Court of the alleged plea agreement in the petty theft case not to use that case as grounds for parole revocation; and (5) failing to challenge the standard the Superior Court applied for the elements of absconding from parole. (Petition at 5-6; Pet. Memo at 7-13.) Petitioner generally alleges that he had a conflict of interest with his counsel over these asserted failures and that counsel effectively abandoned Petitioner. (Pet. Memo at 11-12.)
Petitioner presented subclaims (1), (2), (4) and (5) above first to the California Supreme Court, so this Court has reviewed these subclaims de novo.
1.State Court Decision
The California Court of Appeal addressed some of Petitioner's ineffective assistance of counsel claims. The Court of Appeal found it likely that defense counsel determined that certain witnesses Petitioner wanted presented would not be relevant to the issues determined, and the failure to present the documentary evidence Petitioner provided would not have assisted Petitioner's defense. (Lodgment 3 at 6-7 & n.3.) The Court of Appeal concluded: “[W]hat [Petitioner] describes is simply a difference of opinion regarding strategy, rather than unprofessional errors by counsel. Moreover, [Petitioner] failed to show prejudice.” (Lodgment 3 at 7.)
2.Legal Standard
The United States Supreme Court has never held that there is a Sixth Amendment or other constitutional right to counsel (which would give rise to an ineffective assistance of counsel claim) at parole revocation hearings. Petitioner cannot claim ineffective assistance of counsel where there is no federal constitutional right to counsel.
See Gagnon v. Scarpelli, 411 U.S. at 790 (rejecting imposition of “new inflexible constitutional rule” re appointing counsel in parole revocation hearings and leaving the issue up to the states; observing, “there will remain cases in which fundamental fairness - the touchstone of due process - will require that the State provide at its expense counsel for indigent. . . parolees”); Nelson v. Cal. Dep't of Corrections and Rehabilitation, 2020 WL 8414030, at *3 (C.D. Cal. Dec. 17, 2020), report and recommendation adopted, 2021 WL 706760 (C.D. Cal. Feb. 20, 2021), cert. of appealability denied, 2022 WL 4091977 (9th Cir. June 10, 2022) (recognizing lack of Supreme Court holding); see also United States v. Spangle, 626 F.3d 488, 494 (9th Cir. 2010), cert. denied, 565 U.S. 855 (2011) (“The Sixth Amendment does not apply to parole revocation proceedings. . . .”); see generally Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“[T]he right to appointed counsel extends to the first appeal of right, and no further.”).
See Miller v. Keeney, 882 F.2d 1428, 1432 (9th Cir. 1989) (“If a state is not constitutionally required to provide a lawyer, the constitution cannot place any constraints on that lawyer's performance.”).
Even if this Court assumes that Petitioner had such a right, the standard for obtaining relief would be difficult to meet. In order to prevail on his ineffective assistance of counsel claim under the United States Supreme Court decision in Strickland v. Washington, Petitioner must prove two things: (1) that counsel's performance was deficient, and (2) that he was prejudiced by the deficient performance. A court evaluating an ineffective assistance of counsel claim does not need to address both elements of the test if a petitioner cannot prove one of them.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Id. at 697.
To prove deficient performance, a petitioner must show that counsel's performance was below an objective standard of reasonableness. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Only if counsel's acts or omissions, examined in light of all the surrounding circumstances, fell outside this “wide range” of professionally competent assistance will petitioner prove deficient performance.Proof of deficient performance does not require habeas corpus relief if the error did not result in prejudice. Accordingly, a petitioner must also that, but for counsel's unprofessional errors, the result of the proceedings would have been different.
Id. at 687-88.
Id. at 689.
Id. at 690.
Id. at 691.
Id. at 694.
3.Analysis
Assuming that Petitioner had a constitutional right to counsel at his revocation proceedings, Petitioner has not shown any prejudice from his counsel's representation. First, as explained in Section VI.A.4 above, Petitioner has not shown prejudice from the delay in the revocation hearing or stipulating to probable cause. There is no suggestion in the record that the result of the proceeding would have been different had Petitioner's counsel demanded a probable cause hearing or timely revocation hearing.
Second, for the reasons explained in Section VI.A.4 above, Petitioner has not shown prejudice from the failure to present evidence establishing that Acosta replaced Petitioner's first EID ankle monitor because it was faulty. The Court of Appeal reasonably found that counsel's failure to submit witnesses and evidence to establish that Petitioner's first EID ankle monitor was faulty and replaced was likely due to a difference in strategy, and in any event that the evidence would not have aided Petitioner's defense. There is no suggestion in the record that the result of the proceeding would have been different had Petitioner's counsel presented this evidence since there was other undisputed evidence adequately supporting the Superior Court's findings for revoking Petitioner's parole.
Third, for the reasons explained in Section VI.A.4 above, Petitioner has not shown prejudice from counsel's failure to inform the Superior Court of the alleged plea agreement in the petty theft case not to use that case as grounds for parole revocation. Petitioner has presented no evidence to support that such an agreement existed and, more significantly, the Superior Court relied on reasons beyond Petitioner's petty theft to revoke Petitioner's parole. There is no suggestion in the record that the result of the proceeding would have been different had counsel presented this evidence.
Fourth, for the reasons explained in Section VI.D.2 below, Petitioner has not shown prejudice from counsel's failure to challenge the standard the Superior Court applied for finding that Petitioner absconded from parole. The California Court of Appeal found that Petitioner was wrong about the standard that he alleged applied. His counsel cannot be faulted for failing to raise a meritless legal argument. There is no suggestion in the record that the result of the proceeding would have been different had counsel challenged the standard applied for absconding from parole.
See Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) (“the failure to take a futile action can never be deficient performance”); see also Leavitt v. Arave, 646 F.3d 605, 613 (9th Cir. 2011), cert. denied, 566 U.S. 91 (2012) (petitioner must demonstrate likelihood of prevailing on argument that was not raised for ineffective assistance of counsel claim).
For the foregoing reasons, Claim Two does not merit federal habeas relief.
C. Petitioner's Liberty Interest in Parole and the Assertedly False Evidence
In Claim Three, Petitioner argues that the Superior Court's decision to revoke his parole wrongly deprived him of his protected liberty interest in being free on parole based on the introduction of false evidence (namely, testimony from Acosta that Petitioner only had one EID ankle monitor, and the allegedly “altered” “Electronic In-Home Detention Special Conditions of Parole” agreement that Petitioner signed on October 12, 2017, which included a handwritten notation with Petitioner's later-assigned EID ankle monitor number). (Petition at 6; Pet. Memo at 4.) Petitioner presented this claim first to the California Supreme Court, so this Court has reviewed Claim Three de novo.
1. Background
Acosta testified about the Electronic In-Home Detention Special Conditions of Parole agreement that Petitioner signed on October 12, 2017, which the prosecution introduced at the revocation hearing, and which includes two handwritten EID identification numbers written in the top corner. (RT at 4827-35; see also Pet. Memo at 19 (copy of agreement).) The EID number written at the top is the EID number for Petitioner's second EID ankle monitor, and the number Acosta used to identify the found cut-off ankle monitor as Petitioner's monitor. (RT at 4829-32; see also Pet. Memo at 21 (“Enrollee Device Change Report” not introduced at the revocation hearing but reflecting the same EID number for the new device issued to Petitioner on November 14, 2017, as written on the agreement that Petitioner signed on October 12, 2017).)
Petitioner suggests that the agreement introduced at his hearing was “falsified” or “tampered with” because it could not have contained the handwritten EID number at the time Petitioner signed the agreement. (Pet. Memo at 3.) There was no testimony at the revocation hearing about whether any handwritten EID numbers were written on the agreement at the time Petitioner signed it or added later. (RT at 4801-93.)
2. Analysis
Recognizing Petitioner's protected liberty interest in remaining free on parole for so long as he complied with the State's restrictions imposed on his liberty as parole conditions,Petitioner has not shown prejudice from the presentation of this assertedly false evidence at his revocation hearing.
Morrissey, 408 U.S. at 482.
Standlee v. Rhay 557 F.2d at 1307-08; Smith v. United States Parole Comm'n, 875 F.2d at 1368-69.
The California Court of Appeal found that the expanded record on appeal confirmed that Acosta replaced Petitioner's first EID ankle monitor because it was defective. (Lodgment 3 at 7 n.3.) This Court assumes for the sake of argument Acosta's testimony to the contrary at the revocation hearing therefore was false. This Court also assumes that Acosta added the handwritten EID numbers on Petitioner's Electronic In-Home Detention Special Conditions of Parole agreement after Petitioner signed the agreement.
However, Acosta's testimony about Petitioner having only one EID ankle monitor and the handwritten EID numbers added to the agreement would not alter the terms of electronic monitoring that Petitioner agreed to as a condition to his parole (including not tampering with his monitoring device). (Pet. Memo at 19 (terms).) The “Enrollee Device Change Report” Petitioner submitted confirms that the number written on the agreement was for Petitioner's EID replacement device - the same number Acosta used to confirm that the found cut-off ankle monitor was Petitioner's monitor, which the Superior Court found established by a preponderance of the evidence that Petitioner violated the EID program condition that he not tamper with his monitoring device. (Pet. Memo at 19, 21; RT at 4893.)
Any claim that false evidence deprived Petitioner of his liberty interest in parole fails on de novo review for lack of prejudice. As discussed in Section VI.A.4 above, the undisputed evidence also amply supported the Superior Court's finding that Petitioner violated his parole conditions by cutting off his EID ankle bracelet after failing to report to Acosta as ordered to support his parole revocation. For these reasons, Claim Three does not establish a constitutional violation entitling Petitioner to federal habeas relief.
D. Equal Protection
In Claim Four, Petitioner argues that the Superior Court deprived him of equal protection under the law by applying an erroneous standard for absconding from parole. Petitioner argues that the Superior Court should have applied Cal. Code Regs Tit. 15 § 2731, which provides that a “parolee absconds when the parolee. . . has not been available for contact for thirty days,” and a provision from the California Department of Corrections manual. (Petition at 6; Pet. Memo at 5-6.) Petitioner reasons that because the evidence did not show that he was out of contact for thirty days, he did not abscond from parole. (Id.)
1.Background
The Superior Court found true the allegation that Petitioner absconded from parole based on the evidence that: (1) Petitioner failed to report to Acosta as ordered on December 4, 2017; (2) Petitioner's EID ankle monitor went to dead battery status and Acosta could not find Petitioner at Petitioner's residence or reach him by phone on December 5, 2017; (3) Acosta recovered Petitioner's removed EID ankle monitor on December 6, 2017; (4) Petitioner remained unaccounted for until Target security arrested him on December 19, 2017; and (5) Petitioner's testimony regarding why he took the steps to turn himself in by taking items from the Target store rather than turning himself in to Acosta. (RT at 4890.) Less than thirty days elapsed from the time Petitioner failed to report to the time of his arrest.
2. State Court Decision
The California Court of Appeal rejected Claim Four, finding that Petitioner was incorrect as a matter of state law. (Lodgment 3 at 8-9.) The Court of Appeal explained:
The 30-day time period in the regulation and provision does not define when a parolee can be found to absconded; it merely refers to when a report of absconding should be made to the appropriate authorities. The term “abscond” - which, although not defined in the Penal Code, has an ordinary meaning of “to depart secretly and hide oneself” (citation omitted) - has no minimum time period. [Petitioner] himself testified that, despite being ordered to be in his residence from 10:00 p.m. to 6:00 a.m. every day, he did not go into his residence on the night of November 30 and stayed away for several days (other than stopping by to get some clothes) until he was caught at the Target store. This evidence clearly was sufficient to support the finding that he absconded parole supervision.(Lodgment 3 at 8-9.)
3. Analysis
To the extent Petitioner is arguing that the Superior Court erred under state law in finding that he absconded from parole as assertedly contrary to California regulations, he is not entitled to federal habeas relief. Errors of state law are not addressable on habeas corpus. This Court must defer to the California Court of Appeal's determination on this state law issue.
Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“it is not the province of a federal habeas court to reexamine state-court determinations of state-law questions”); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).
Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam) (“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”).
Petitioner's reference to the equal protection clause does not alter this Court's analysis. A habeas petitioner may not “transform a state law issue into a federal one” merely by invoking general principles of federal constitutional law. Petitioner's conclusory reference to the equal protection clause does not suffice to state a claim for federal habeas relief.For these reasons Claim Four does not merit federal habeas relief.
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S. 881 (1997).
See James v. Borg, 24 F.3d 20, 26 (9th Cir.), cert. denied, 513 U.S. 935 (1994) (conclusory allegations do not warrant habeas relief).
E. Malicious Prosecution/Prosecutorial Misconduct
In Claim Five, Petitioner argues that the prosecution maliciously prosecuted him and engaged in misconduct by: (1) depriving Petitioner of a probable cause hearing and a timely parole revocation hearing; (2) violating the prior plea agreement in Petitioner's related petty theft case and effectively “maliciously retrying” that case; (3) depriving Petitioner of the ability to cross-examine an expert on EID devices; and (4) suppressing evidence of Fuller's letter (addressed to Petitioner's counsel) which would have shown that Petitioner had two EID ankle monitors and that Acosta perjured himself in his related testimony and undermined Acosta's testimony. (Petition at 6; Pet. Memo at 13-14.) Petitioner presented subclaims (2) through (4) above first to the California Supreme Court, so this Court has reviewed subclaims de novo.
1.Background
Petitioner has pointed to no evidence suggesting that the prosecution had any involvement in Petitioner's stipulations to probable cause for the alleged violations or any of the waivers of time for having the parole revocation hearing. This Court has found nothing in the record to suggest that the prosecution had any involvement. (CT at 20, 23, 27-113; RT at 302, 601-02, 1501-06, 2101-02, 3001-02, 3302, 3603, 3902.) Petitioner also has pointed to no evidence suggesting that the prosecution deprived Petitioner of the ability to call his own witnesses. This Court has found nothing in the record to suggest the prosecution prevented in any way Petitioner from calling his own witnesses. (CT at 1-122; RT at 1-4893.) Petitioner admits that his trial counsel had the letter that the prosecution allegedly suppressed. (Pet. Memo at 5). Finally, as discussed in Section VI.A.4 above, there is no evidence in the record of any plea agreement from Petitioner's petty theft case not to use that case in Petitioner's pending revocation proceedings, and the prosecution's reliance on Petitioner's admission that he committed petty theft did not result in a second prosecution for petty theft - the petty theft only resulted in one of the findings that supported Petitioner's parole revocation. (RT at 4890-93.)
2. State Court Decision
The California Court of Appeal found no merit to Petitioner's arguments that he was denied the right to present witnesses and present evidence at a probable cause hearing since Petitioner twice stipulated to probable cause for the alleged violations. (Lodgment 3 at 5-6 (referencing CT at 19-20, RT at 302).)
3. Analysis
Petitioner's conclusory claims of prosecutorial misconduct which have no support in the record do not suggest prejudice to Petitioner to entitle Petitioner to federal habeas relief.“Prosecutorial misconduct which rises to the level of a due process violation may provide the grounds for granting a habeas petition only if that misconduct is deemed prejudicial under the ‘harmless error' test articulated in Brecht,” which “requires that we independently evaluate whether an error ‘had substantial and injurious effect or influence in determining the jury's verdict [or outcome].'” This Court has independently evaluated Petitioner's unsubstantiated claims and finds no error much less any prejudice.
See James v. Borg, 24 F.3d at 26.
Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); see also Burks v. Borg, 27 F.3d 1424, 1431 (9th Cir. 1994), cert. denied, 513 U.S. 1095, 1160 (1995) (harmless error standard set forth in Brecht applies to claims of prosecutorial misconduct).
If Petitioner is alleging that the prosecution knowingly submitted false testimony, Petitioner's claim would fail for the same reason Claim Three fails. In Napue v. Illinois, the United States Supreme Court held that “a conviction obtained through use of false evidence, known to be such by representatives of the State,” violates a defendant's right to due process under the 14th Amendment. To establish a due process violation under Napue, a petitioner must prove that: (1) the testimony was actually false, (2) the prosecution knew or should have known that the testimony was false, and (3) the false testimony was material. False evidence is material if there is “any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Assuming that the prosecution knew or should have known that Acosta's testimony about Petitioner only having one EID ankle monitor was false, Acosta's testimony was not material for the reasons explained in Section VI.A.4 above - other undisputed evidence sufficiently established Petitioner's parole violations to support his parole revocation.
360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
See also Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir. 2008).
Id. at 1071-72.
United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009) (distinguishing standard from one asking whether there was reasonable probability of different outcome).
VII. RECOMMENDATION
IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.