Robert John Garcia v. The BPH Board of Parole Hearings

Opinion

ROBERT JOHN GARCIA, ) No. CV 20-08529-VBF (PLA) ) Petitioner, ) ) v. ) ORDER TO SHOW CAUSE RE: DISMISSAL ) OF HABEAS PETITION HEARINGS, et al., ) ) Respondents. ) ) Robert John Garcia (“petitioner”) initiated this action on September 15, 2020, by filing a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). (ECF No. 1). Petitioner is currently in custody pursuant to his 1973 conviction for first- and second-degree murder (Cal. Penal Code § 187). Liberally construed, several of petitioner’s claims in the Petition appear to attack his 1973 conviction, while other claims appear to challenge a parole denial. Although petitioner’s allegations are to some extent unintelligible, the Court discerns the following claims: (1) the prosecutor suppressed exculpatory evidence (ECF No. 1 at 26); (2) the trial court interfered with the jury’s deliberations (id. at 28); (3) petitioner was prosecuted again for the same offense after a mistrial (id.); (4) petitioner is suitable for parole as he no longer poses an unreasonable risk of proceedings, and has violated the California constitution (id. at 30); and (6) the BPH has exhibited bias against petitioner during his parole hearings (id. at 32). As explained in more detail below, it appears that the Petition is subject to dismissal, as it contains claims that are either barred as successive or are not cognizable on federal habeas review. The Court notes that in 2018, in Case No. CV 18-03864-VBF (PLA), petitioner filed a petition challenging his 1973 conviction (“2018 Petition”). On May 18, 2018, the 2018 Petition was dismissed without prejudice as successive. (Case No. CV 18-03864-VBF (PLA), ECF Nos. 1, 3). In the Order dismissing the 2018 Petition, the District Judge observed that petitioner had filed at least twenty-four prior habeas petitions in this Court in the following cases: • Case No. CV 78-02414-LEW (T) • Case No. CV 82-03612-LEW (T) • Case No. CV 82-05235-LEW (T) • Case No. CV 88-05459-RMT (T) • Case No. CV 88-07657-RSWL (T) • Case No. CV 90-04615-MRP (T) • Case No. CV 93-00493-MRP (T) • Case No. CV 99-10514-MRP (T) • Case No. CV 99-13573-MRP (CT) • Case No. CV 00-00812-AHM (CT) • Case No. CV 00-02681-R (CT) • Case No. CV 00-04247-R (CT) (dismissed as successive) • Case No. CV 01-06503-HLH (CT) • Case No. CV 02-04205-AHS (CT) (dismissed as successive) • Case No. CV 02-04413-AHS (CT) (dismissed as successive) • Case No. CV 07-07459-AHS (CT) • Case No. CV 11-07300-AHS (PLA) • Case No. CV 12-00869-AHS (PLA) • Case No. CV 13-07306-AHS (PLA) • Case No. CV 14-04224-VBF (PLA) (dismissed as successive) • Case No. CV 17-02705-VBF (PLA) (dismissed as successive) • Case No. CV 17-06402-VBF (PLA) (dismissed as successive) • Case No. CV 17-07952-VBF (PLA) (dismissed as successive). (See CV 18-03864, ECF No. 3 at 2-3). Based on this history of habeas filings, it appears that petitioner’s first petition attacking his 1973 conviction was filed in 1978 in Case No. CV 78-02414-LEW (T) (“1978 Petition”), and was denied on the merits. (See Case No. CV 00-04247-R (CT), ECF No. 3). Years later, his petition in Case No. CV 00-04247-R (CT) was dismissed on April 25, 2000, as successive. (See Case No. CV 00-04247-R (CT), ECF Nos. 3, 4). Likewise, his petitions in Case No. CV 02-04205-AHS (CT) and Case No. CV 02-04413-AHS (CT) were also dismissed as successive, as were subsequent petitions filed in 2014, 2017, and 2018. A federal habeas petition is successive if it raises claims that were or could have been adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a claim presented in a second or successive federal habeas petition that was not presented in a prior petition shall be dismissed unless: (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A), (B). Furthermore, “[b]efore a second or successive application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). As discussed above, the 1978 Petition challenged petitioner’s 1973 conviction and was dismissed on the merits. Over a span of eighteen years, from 2000 to 2018, petitioner filed at least eight additional petitions that attacked the same conviction and were dismissed as successive (i.e., petitions filed in 2000, 2002, 2014, 2017, and 2018). Given these circumstances, it appears that the instant Petition, to the extent it challenges the 1973 conviction, is also successive. Based on petitioner’s allegations in the instant Petition, it does not appear that he satisfies any of the exceptions listed in 28 U.S.C. § 2244(b)(2)(A) or (B). Even if he were able to qualify under § 2244(b)(2)(A) or (B), however, he would still be required to request and obtain authorization from the Ninth Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007) (AEDPA requires petitioner to receive authorization from the court of appeals before filing a second habeas petition). Because there is no indication that petitioner has obtained such authorization from the Ninth Circuit, it appears that the Court is without jurisdiction to entertain the successive claims in the instant Petition.1 See Burton, 549 U.S. at 153; Cooper, 274 F.3d at 1274 (“‘When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.’”). 1 As petitioner has been repeatedly advised, if he wishes to make a successive habeas application, he must file a “Motion for Order Authorizing District Court to Consider Second or Successive Petition Pursuant to 28 U.S.C. § 2244(b)(3)(A)” directly with the Ninth Circuit Court of Appeals. Until the Ninth Circuit issues such an order, any direct or implied request for a second or successive petition for writ of habeas corpus is barred by § 2244(b) and must be dismissed without prejudice to petitioner’s right to seek authorization from the Ninth Circuit to file the petition. If petitioner obtains permission from the Ninth Circuit Court of Appeals to file a successive petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action or use the case number from this action. If petitioner files As mentioned supra, petitioner also asserts in the Petition that he is suitable for release on parole, but that the BPH is biased against him and has held “scam” parole proceedings. (See ECF No. 1 at 29-30, 32). Although petitioner fails to identify a particular parole decision he is challenging, to the extent he seeks to attack a parole denial on the grounds the BPH was biased and/or made an unsuitability finding that was not supported by the evidence, such claims are foreclosed by the Supreme Court’s decision in Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). There, the Court explained that a federal habeas court’s inquiry into a parole denial is limited to determining whether the following procedural safeguards, as set forth in Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), were satisfied: that the prisoner “was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied.” Cooke, 562 U.S. at 220 (citing Greenholtz, 442 U.S. at 16). Cooke was “unequivocal in holding that if an inmate seeking parole [received the safeguards under Greenholtz], that should be the beginning and the end of the inquiry into whether the inmate received due process.” Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) (quoting Cooke, 562 U.S. at 220) (internal quotations, alterations, and ellipsis omitted). Here, it does not appear that petitioner alleges he was in any way deprived of the opportunity to speak at his parole hearing and contest the evidence against him, or that he was not notified of the reasons why parole was denied. Under Cooke, the Court lacks the authority to evaluate claims that exceed the scope of these minimal due process protections. Accordingly, to the extent petitioner contends the BPH was biased against him and wrongly found him unsuitable for parole, his claims are not cognizable and cannot be considered on federal habeas review. Based on the above, petitioner is ordered to show cause why his Petition for Writ of Habeas Corpus should not be dismissed. To satisfy this Order to Show Cause, no later than October 21, 2020, petitioner must submit to the Court a response making clear his arguments, if any, as to why the Petition should not be dismissed (1) as successive, and/or (2) as not cognizable. Additionally, with respect to petitioner’s parole claims, petitioner in his response must identify the specific parole decision he is challenging in this Petition by providing, at a minimum, the date of the parole hearing, the date of the parole denial, and copies of any documents available to petitioner that concern the challenged hearing and denial. Alternatively, if petitioner agrees that the Petition should be dismissed without prejudice for the reasons discussed above, he may file a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1) (“Rule 41”). Rule 41 allows for the voluntary dismissal of an action by a petitioner2 without prejudice and without a court order before the opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1); Hamilton v. Shearson-Lehman Am. Express, Inc., 813 F.2d 1532, 1534 (9th Cir. 1987). Respondent has not yet appeared in this action. The Court clerk is directed to send petitioner a copy of a blank Central District form titled “Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c)” along with this Order to Show Cause. / / / / / 2 Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” See also Hilton v. Braunskill, 481 U.S. 770, 776 & n.5 (1987) (Federal Rules of Civil Procedure may be applied to habeas petitions so long as they are not inconsistent with the Rules Governing Section 2254 Cases). The Rules Governing Section 2254 Cases do not contain a specific provision addressing voluntary dismissals. See Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993) (applying Rule 41 to a petitioner’s request for voluntary dismissal of his habeas petition); Williams v. Clarke, 82 F.3d 270, 273 (8th Cir. 1996) (“a Rule 41(a)(1) voluntary dismissal is both appropriate and consistent with the rules governing habeas cases”); Woods v. Knowles, 2003 WL 21767470, at *1 (N.D. Cal. July 23, 2003). Thus, Rule 41, which otherwise governs such dismissals, is applicable to this habeas action. Failure to respond by October 21, 2020, will result in the Petition being summarily dismissed for the reasons set forth above, and for failure to prosecute and follow court orders.

DATED: September 22, 2020 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE