Johnson v. Newland , 405 F. App'x 161 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHESTER JOHNSON, No. 04-16712
Petitioner - Appellant, D.C. No. CV-97-00558-
WBS/DAD
v.
ANTHONY NEWLAND; ATTORNEY MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA; TOM L. CAREY,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued January 14, 2008
Resubmitted December 1, 2010
San Francisco, California
Before: WALLACE, HUG and SCHROEDER, Circuit Judges.
California state prisoner Chester Johnson (“petitioner”) appeals from the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253. We review de novo the denial of a habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition. Tanner v. McDaniel, 493 F.3d 1135, 1139 (9th Cir. 2007). The
Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs our review.
Woodford v. Garceau, 538 U.S. 202, 204, 207 (2003). Under AEDPA, we grant
relief if the state court decision was “contrary to, or involved an unreasonable
application of, clearly established” Supreme Court law, or was “an unreasonable
determination of the facts in light of the evidence.” 28 U.S.C. § 2254(d). If a state
court adjudicates the merits but does not provide its reasoning, we conduct an
independent review of the record. Greene v. Lambert, 288 F.3d 1081, 1088-89
(9th Cir. 2002). We affirm.
Petitioner contends that the Board’s 1995 decision to deny him parole
violated his due process rights because it was not supported by “some evidence.”
A denial of parole to a prisoner must be supported by “some evidence” of the
prisoner’s threat to public safety. Hayward v. Marshall, 603 F.3d 546, 563 (9th
Cir. 2010) (en banc). “Some evidence” of dangerousness includes the nature of the
offense, a record of violence, an unstable social history or history of mental
problems, and misconduct in jail. Pirtle v. Cal. Bd. of Prison Terms, 611 F.3d
1015, 1021 (9th Cir. 2010). The committed offense alone does not show
dangerousness unless the record also shows something in the petitioner’s pre- or
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post-incarceration history, his current demeanor, or his mental state which allows
for an inference of current dangerousness. Id.The state court decision upholding the Board’s denial of petitioner’s parole
was not contrary to, or an unreasonable application of, Supreme Court precedent.
Petitioner was convicted of two first degree murders. He engaged in an extended
crime spree which involved multiple victims in separate incidents of violence. The
aggravated nature of the crimes supports a denial. Moreover, petitioner’s juvenile
record, history of violence, and misconduct while in jail support a denial. See
Pirtle, 611 F.3d at 1021.
Petitioner argues that the Board violated his due process rights by denying
his request to have three non-family members testify at his 1995 recission hearing.
“The prisoner’s witnesses shall be called unless the Board has specific reasons to
deny his request and advises the prisoner of those reasons in writing.” In re
Johnson, 35 Cal. App. 4th 160, 170 (Cal. App. 1995) (citations and internal
quotation marks omitted). Here, the Board denied the request because the
witnesses would have provided cumulative evidence and the witnesses had already
provided letters to the Board. The Board may deny a request for dispositional
witnesses if the evidence would be irrelevant or cumulative and the testimony may
be presented in written form. See Cal. Admin. Code tit. 15, § 2668(b). Thus, the
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state court’s holding that there was no due process violation was not contrary to, or
an unreasonable application of, Supreme Court precedent.
Petitioner contends that application of Cal. Penal Code § 3041.1 violated the
ex post facto clause. Under § 3041.1, the Governor may request review of a parole
release decision up to 90 days before the release date and once the request is made
the review is mandatory. Here, § 3041.1 does not violate the ex post facto clause
because it does not punish as a crime an act previously committed which was not a
crime, impose a greater penalty for a crime after it was committed, or deprive one
of a defense that was available at the time of the act. See Collins v. Youngblood,
497 U.S. 37, 52 (1990); Johnson v. Gomez, 92 F.3d 964, 967-68 (9th Cir. 1996).
Moreover, the Board exercised its inherent authority to review the parole decision
independent of § 3041.1 because the Governor’s request was untimely. Because
no evidence shows a violation, the state court’s holding was not contrary to, or an
unreasonable application of, Supreme Court precedent.
Petitioner contends that he was denied due process when he was returned to
prison without a parole revocation hearing. Because petitioner filed this claim in
January 2000, and under AEDPA the limitations period to file the claim expired on
April 24, 1997, this claim is time-barred. See 28 U.S.C. § 2244(d); Jenkins v.
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Johnson, 330 F.3d 1146, 1149 (9th Cir. 2003), overruled on other grounds, Pace v.
DiGualielmo, 544 U.S. 408 (2005).
AFFIRMED.
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