# Norris L. Reese v. Ron Broomfield

> District Court, C.D. California · June 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10041042

## Case

- **Court:** District Court, C.D. California
- **Decided:** June 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10041042

## How later opinions describe it (automated extraction)

- noting that under “clearly established” Eighth Amendment jurisprudence, “[a] gross disproportionality principle is applicable to sentences for terms of years”
- holding that statutory scheme providing for 20 || mandatory (versus discretionary) life sentence without parole for those under age 18 21 || at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and 22 | unusual punishments

## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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NORRIS L. REESE, ) Case No. 2:21-cv-04342-SVW-JC
11 )
Petitioner, )
) ORDER TO SHOW CAUSE WHY
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v. ) THE PETITION FOR WRIT OF
) HABEAS CORPUS AND THIS
13 RON BROOMFIELD, ) ACTION SHOULD NOT BE
) DISMISSED
14 Respondent. )
)
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I. SUMMARY
17
On May 24, 2021, petitioner Norris L. Reese (sometimes spelled “Reece”), a
18 state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a
19 Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”) with attachments
20 (“Petition Ex.”), which appears to challenge his 98-years-to-life sentence imposed in
21 1982 in Los Angeles County Superior Court Case No. A363127, for two counts of
22 first degree murder, one count of involuntary manslaughter, three (or four) robbery
23 counts and one burglary count. See Petition at 2, 5-6 (stating that the Petition
24 concerns a “[d]isproportionate [t]erm of [i]ncarceration for a 16 year old child”).
25 The Petition purports to raise two claims for relief: (1) petitioner’s sentence to 98-
26 years-to-life is disproportionate to his individual culpability from having committed
27 the crimes when petitioner was 16 years old, his sentence amounts to cruel and
28 unusual punishment, and his lengthy sentence (which he asserts is a de facto
1 || sentence for life without the possibility of parole or death) violates Miller v.
2 || Alabama, 567 U.S. 460 (2012), Montgomery v. Louisiana, 577 U.S. 190 (2016), and
3 || Graham v. Florida, 560 U.S. 48 (2010), and should qualify him for a reduction in his
4 || sentence by hearing pursuant to People v. Franklin, 63 Cal. 4th 261 (Cal.), cert.
5 || denied, 137 S. Ct. 573 (2016) (Ground One; see Petition at 5-15); and (2) his
6 || continued incarceration after 40 years is grossly disproportionate to his diminished
7 culpability from committing his crimes when he was 16 years old (Ground Two; see
g Petition at 15-26). With respect to Ground Two, petitioner states, “Petitioner does
9 not challenge by this writ of habeas corpus his lawful indeterminate sentence. On
10 the contrary, Petitioner challenges the actual term of years he was required to serve
[as determined by the California Board of Parole Hearing’s April 28, 2016

decision to deny parole].” (Petition at 18). Petitioner also argues that the Board of
Parole Hearings denied him parole for seven years without taking into consideration
° petitioner’s “diminis[hed] culpability as a 16 year old child under the influence of
4 PCP at the time of the crime[s].” (Petition at 6).
Petitioner has attached to the Petition: (1) an April 28, 2016 hearing
16 transcript and decision by the California Board of Parole Hearings denying parole
for seven years (Exhibit A); (2) a Comprehensive Risk Assessment for the Board of
18 | Parole Hearings dated March 25, 2015 (Exhibit B); (3) an October 9, 2019 Los
19 | Angeles County Superior Court decision in Case No. BH012569 denying a petition
20 || for writ of habeas corpus, finding that “some evidence” supported the Board of
21 | Parole Hearings’s April 28, 2016 denial (“LASC Order’); (4) a December 5, 2019
22 || California Court of Appeal order in Case No. B302167 denying a petition for writ of
23 || habeas corpus for failure to state a prima facie case for relief, citing People v.
24 || Duvall, 9 Cal. 4th 464, 474-75 (1995) and People v. Dillon, 34 Cal. 3d 441, 479,
25 || 482-83, 487-88 (1983); and (5) a March 17, 2021 California Supreme Court order in
26 || Case No. S266945 denying a petition for writ of habeas corpus without comment.
97 ///
2g | ///

1 II. DISCUSSION
2 Rule 4 of the Rules Governing Section 2254 Cases in the United States
3 District Courts allows a district court to dismiss a petition if it “plainly appears from
4 the petition and any attached exhibits that the petitioner is not entitled to relief in the
district court. . . .” Rule 4 of the Rules Governing Section 2254 Cases. Based upon
5
the Petition and its attachments, and for the reasons discussed below, the Court
6
orders petitioner to show cause why the Petition and this action should not be
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dismissed for untimeliness and/or for failure to state a claim meriting federal habeas
8
relief.
9
A. To the Extent Petitioner May Be Challenging His Original 98-
10
Years-to-Life Sentence as Disproportionate or Amounting to Cruel
11
and Unusual Punishment, the Petition Appears to Be Time-Barred
12
and without Merit
13
Although petitioner states in Ground Two that he is not challenging his
14
original “lawful” indeterminate sentence (Petition at 18), Ground One can be read to
15
raise such a challenge. Any such challenge appears to be untimely.
16
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death
17
Penalty Act of 1996 (“AEDPA”), which governs all petitions for writs of habeas
18 corpus filed in federal court after its enactment. Lindh v. Murphy, 521 U.S. 320,
19 327 (1997). AEDPA instituted a one-year statute of limitations for the filing of
20 habeas petitions by persons in state custody. 28 U.S.C. § 2244(d)(1). The one-year
21 limitation period runs from the latest of: (1) the date on which the judgment became
22 final by the conclusion of direct review or the expiration of the time for seeking
23 such review (28 U.S.C. § 2244(d)(1)(A)); (2) the date on which the impediment to
24 filing an application created by State action in violation of the Constitution or laws
25 of the United States is removed, if the applicant was prevented from filing by such
26 State action (28 U.S.C. § 2244(d)(1)(B)); (3) the date on which the constitutional
27 right asserted was initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively applicable to cases
28
1 | on collateral review (28 U.S.C. § 2244(d)(1)(C)); or (4) the date on which the
2 || factual predicate of the claim or claims presented could have been discovered
3 || through the exercise of due diligence (28 U.S.C. § 2244(d)(1)(D)).
4 For prisoners like petitioner whose convictions became final prior to
5 || AEDPA’s effective date, April 24, 1996, a one-year grace period applies. Patterson
6 || v_Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001).
7 Accordingly, the statute of limitations commenced to run on April 25, 1996, unless
g subsections B, C or D of 28 U.S.C. § 2244(d)(1) apply.
9 Subsection B of 28 U.S.C. § 2244(d)(1) has no application in the present case.
10 Petitioner does not allege, and this Court finds no indication, that any illegal state

4 action prevented petitioner from filing the present Petition sooner.

Subsection C of 28 U.S.C. § 2244(d)(1) also appears to have no application in
the present case. While petitioner purports to rely in part on California case law (see
° Petition at 6 (citing California Supreme Court cases)), these state cases do not afford
4 a predicate for a later accrual date. See 28 U.S.C. § 2244(d)(1)(C) (only rights
recognized by the United States Supreme Court and made retroactively applicable to
16 cases on collateral review qualify). Petitioner also cites to Graham v. Florida, 560
48, 82 (2010) (holding that the Eighth Amendment prohibits a sentence of life
18 | without parole for juvenile offenders who did not commit homicide); Miller v.
19 | Alabama, 567 U.S. 460, 465 (2012) (holding that statutory scheme providing for
20 || mandatory (versus discretionary) life sentence without parole for those under age 18
21 || at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and
22 | unusual punishments); and Montgomery v. Louisiana, 577 U.S. 190, 212 (2016)
23 || (holding that Miller announced a substantive rule of constitutional law and has a
24 || retroactive effect; observing that a “State may remedy a Miller violation by
25 || permitting juvenile homicide offenders to be considered for parole, rather than by
26 || resentencing them’). While Miller has been made retroactively applicable, the
27 || foregoing United States Supreme Court cases do not apply to the instant case.
2g || Petitioner was not sentenced to life without parole — he was sentenced to an

1 || indeterminate term and became eligible for parole upon a change in California law
2 || post-Miller (see Cal. Penal Code § 3051(b)(3) (eff. Jan. 1, 2014)), and since has
3 || been found unsuitable for parole for a period of seven years (see Petition at 2, 18,
4 || 22; Exhibit A at 4, 134, 197-218 (parole hearing decision)), so his sentence does not
5 || run afoul of these authorities. Even if petitioner were afforded a later accrual date
6 || for his Eighth Amendment sentencing claim to January 27, 2016 — the date of the
7 decision in Montgomary v. Louisiana confirming that Miller applies retroactively —

g the Petition would still be untimely as to this claim. Assuming, arguendo, that the
9 statute of limitations began to run on petitioner’s sentencing claim on January 28,
10 2016, it would have expired on January 27, 2017 absent statutory tolling.
Subsection D of 28 U.S.C. § 2244(d)(1) also does not afford petitioner a later

accrual date for the statute of limitations. Under Section 2244(d)(1)(D), the statute
of limitations commences when a petitioner knows, or through the exercise of due
° diligence could discover, the factual predicate of his claims, not when a petitioner
4 learns the legal significance of those facts. See Hasan v. Galaza, 254 F.3d 1150,
1154 n.3 (9th Cir. 2001); see also Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir.
16 2003). Here, petitioner’s sentencing claim arises from facts which petitioner knew
or should have known at the time he was sentenced in 1982 (i.e., he was 16 at the
18 time of his offenses and he was sentenced to 98-years-to-life in prison).
19 Title 28 U.S.C. § 2244(d)(2) provides that the “time during which a properly
20 || filed application for State post-conviction or other collateral review with respect to
21 | the pertinent judgment or claim is pending shall not be counted toward” the one-
22 || year statute of limitations period. Petitioner “bears the burden of proving that the
23 || statute of limitations was tolled.” Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir.
24 || 2010), cert. denied, 564 U.S. 1019 (2011). The statute of limitations is not tolled
25 || from the time a final decision is issued on direct state appeal and the time the first
26 || state collateral challenge is filed because there is no case pending during that
27 || interval. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (citations omitted).
2g || Here, the record does not reflect that petitioner is entitled any statutory tolling. It

1 || does not appear that petitioner filed any state applications during the limitations
2 || period. The Petition reflects that petitioner’s direct appeal to the California Supreme
3 || Court was denied in 1984, and petitioner had not filed any prior habeas petitions
4 || with the state courts with respect to his conviction. (Petition at 3). Petitioner did
5 || file habeas petitions with the Los Angeles County Superior Court, the California
6 || Court of Appeal, and the California Supreme Court, but the first of those petitions
7 || was not filed until July 15, 2019 — well after the limitations period had run.
g See LASC Order at 1.
9 In addition to statutory tolling, the limitations period may also be subject to
10 equitable tolling if petitioner can demonstrate both that: (1) he has been pursuing
4 his rights diligently; and (2) some extraordinary circumstance stood in his way.
Holland v. Florida, 560 U.S. 631, 649 (2010). It is a petitioner’s burden to
demonstrate that he is entitled to equitable tolling. Miranda v. Castro, 292 F.3d
1063, 1065 (9th Cir.), cert. denied, 537 U.S. 1003 (2002). It does not appear from
4 the Petition or the current record that petitioner has met his burden to demonstrate
that he is entitled to tolling sufficient to render the Petition timely as to any
16 sentencing claim.
M In rare and extraordinary cases, a plea of actual innocence can serve as a
18 gateway through which a petitioner may pass to overcome the statute of limitations
19 | otherwise applicable to federal habeas petitions. McQuiggin v. Perkins, 569 U.S.
20 || 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en
21 || banc). “[A] petitioner does not meet the threshold requirement unless he [or she]
22 || persuades the district court that, in light of the new evidence, no juror, acting
23 || reasonably, would have voted to find him [or her] guilty beyond a reasonable
24 || doubt.” Perkins, 569 U.S. at 386 (quoting Schlup v. Delo, 513 U.S. 298, 329
25 | (1995)). Petitioner has not raised an actual innocence claim and in fact has admitted
26 || to his underlying offenses. See Exhibit A (transcript of parole hearing discussing
27 || same).
28 || ///

1 For the foregoing reasons, it appears that any claim that petitioner may be
2 || attempting to raise regarding the constitutionality of his sentence imposed in 1982 is
3 || time-barred.
4 Even if petitioner’s sentencing claim were not time-barred, it still would not
5 || merit federal habeas relief. Petitioner contends that his 98-years-to-life sentence
6 || violates the Eighth Amendment because his sentence is de facto a sentence of life
7 without the possibility of parole or death, and argues that the term of 40 years he
g already has served is disproportionate to his crimes. (Petition at 7, 9-10, 12, 15-26).
9 Neither of these arguments has merit.
10 In Demirdjian v. Gipson, 832 F.3d 1060 (9th Cir. 2016), cert. denied, 138

4 S. Ct. 71 (2017), the Ninth Circuit rejected a juvenile offender’s argument that two

consecutive terms of 25 years to life violated the Eighth Amendment because the
sentence was the “functional equivalent” of life without the possibility of parole. Id.
° at 1076-77. The Ninth Circuit observed:
4 Miller’s prohibition of mandatory life-without-parole sentences
for juvenile offenders rested in part on the premise that “a distinctive
16 set of legal rules” applies to a life-without-parole term for juveniles.
M Because such a term is the “ultimate penalty for juveniles . . . akin to
18 the death penalty,” it ““demand|[s] individualized sentencing,” including
19 consideration of the juvenile’s age and the circumstances of the crime.
20 Miller noted, however, that “no other sentences” “share [these]
21 characteristics with death sentences.” There is a reasonable argument that
22 Miller thus applies only to life-without-parole sentences.
23 || Demirdjian, 832 F.3d at 1076 (citations omitted). The Ninth Circuit then rejected
24 || Demirdjian’s argument that his 50-years-to-life sentence was the “functional
25 || equivalent” of a life-without-parole sentence, stating that in Lockyer v. Andrade,
26 || 538 U.S. 63 (2003), the Supreme Court “held an identical sentence was not
27 || controlled by federal precedent involving a life-without-parole sentence.”
ag || Demirdjian, 832 F.3d at 1076-77. Rather, in Andrade, the Supreme Court “reasoned

1 || a sentence of two consecutive terms of 25 years to life was ‘materially
2 || []distinguishable’ from a life-without-parole term because the petitioner actually
3 || ‘retain[ed] the possibility of parole,’ albeit when he was 87 years old.” Id., at 1077
4 || (citing Andrade, 538 U.S. at 73-74). Applying this reasoning, the Ninth Circuit
5 || found that “because Demirdjian will be eligible for parole when he is 66 years old,
6 || his sentence arguably does not ‘share [any] characteristics with death sentences,’
7 and thus does not necessarily trigger Miller’s requirements.” Id. (citation omitted).
g Therefore, the Ninth Circuit held Demirdjian was “not entitled to habeas relief on
9 his Eighth Amendment claim” since “fairminded jurists could disagree with
10 Demirdjian that Miller’s requirements applied to his sentence[.]” Id.; see also
Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state court’s determination that a

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” (citation omitted)).
As noted above, petitioner has been eligible for juvenile offender parole
4 consideration and thus far has had one parole hearing resulting in a denial. (Petition
IS at 2, 18, 22; Exhibit A at 4, 134, 197-218). Demirdjian therefore precludes relief on
16 petitioner’s Eighth Amendment claim since fairminded jurists could disagree with
M petitioner that Miller’s requirements apply to his sentence. Richter, 562 U.S. at 101;
18 Demirdjian, 832 F.3d at 1077. Even if this were not the case, petitioner still would
19 | not be entitled to relief. The Supreme Court has recognized that a “State may
20 || remedy a Miller violation by permitting juvenile homicide offenders to be
21 | considered for parole, rather than by resentencing them.” Montgomery v. Louisiana,
22 | 577 US. at 212 (citing as an example Wyo. Stat. Ann. § 6—10—301(c) (2013)
23 || Guvenile homicide offenders eligible for parole after 25 years)). California has done
24 || so in that California law provides for parole consideration for youthful offenders
25 || after 25 years. See Cal. Penal Code § 3051(b)(3) (“A person who was convicted of
26 || a controlling offense that was committed when the person was 25 years of age or
27 || younger and for which the sentence 1s a life term of 25 years to life shall be eligible
2g || for release on parole at a youth offender parole hearing during the person’s 25th

1 || year of incarceration. The youth parole eligible date for a person eligible for a youth
2 || offender parole hearing under this paragraph shall be the first day of the person’s
3 || 25th year of incarceration.”). Section 3051 “effectively moots” a Miller claim by
4 || converting a juvenile’s life-without-parole “sentence into one for life with the
5 || possibility of parole after 25 years.” Bunn v. Lopez, 740 Fed. App’x 145, 147 (9th
6 || Cir. 2018); Franklin, 63 Cal. 4th at 278-80.
7 Petitioner’s disproportionality claim based on his service of 40 years of his
g 98-years-to-life sentence fares no better. “The Eighth Amendment, which forbids
9 cruel and unusual punishments, contains a ‘narrow proportionality principle’ that
10 ‘applies to noncapital sentences.’” Ewing v. California, 538 U.S. 11, 20 (2003)
(quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J.,
concurring)); see also Andrade, 538 U.S. at 72 (noting that under “clearly
established” Eighth Amendment jurisprudence, “[a] gross disproportionality
principle is applicable to sentences for terms of years”). However, “[t]he gross
4 disproportionality principle reserves a constitutional violation for only the
extraordinary case.” Andrade, 538 U.S. at 77; see also Rummel v. Estelle, 445 U.S.
16 263, 272 (1980) (“Outside the context of capital punishment, successful challenges
I to the proportionality of particular sentences have been exceedingly rare.”’).
18 Here, petitioner has not shown that his indeterminate 98-years-to-life sentence
19 | for two first degree murders, one involuntary manslaughter, three robberies and a
20 | burglary is grossly disproportionate, or that his ongoing detention after so many
21 | years of incarceration is an “extraordinary case” of cruel and unusual punishment.
22 | Andrade, 538 U.S. at 76; Ewing, 538 U.S. at 30-31. Similarly lengthy sentences for
23 || crimes less serious than petitioner’s crimes have been upheld by the Supreme Court.
24 || See, e.g., Ewing, 538 U.S. at 29-31 (upholding 25-years-to-life sentence for
25 || recidivist convicted most recently of grand theft); Andrade, 538 U.S. at 76
26 || (upholding sentence of two consecutive 25-years-to-life terms for recidivist
27 || convicted most recently of two counts of petty theft with a prior conviction);
2g || Harmelin, 501 U.S. at 996 (upholding sentence of life without the possibility of

1 parole for first offense of possession of 672 grams of cocaine); compare Miller, 567
2 U.S. at 473 (“the characteristics of youth. . . can render a life-without-parole
3 sentence disproportionate”). Petitioner has shown no Eighth Amendment violation.
4 Petitioner and a co-defendant robbed and killed four people while under the
influence of PCP, targeting older victims in the Pico-Robertson area of Los Angeles.
5
(LASC Order at 1). All of the victims were vulnerable, unarmed, unsuspecting,
6
some were elderly, they posed no threat to petitioner, and in some instances put their
7
hands up in surrender when told they were being robbed and petitioner still shot and
8
killed them. (Exhibit A at 83-103, 126-38, 185-86. 199-200).1
9
For these reasons, petitioner’s Eighth Amendment claim lacks merit and does
10
not warrant relief. Assuming petitioner presented such a claim in his petitions to the
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state courts, any rejection by those courts would not be contrary to, or involve an
12
unreasonable application of, clearly established federal law or be based on an
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unreasonable determination of the facts in light of the evidence presented. See 28
14
U.S.C. § 2254(d).
15
B. Petitioner’s Challenge to the Board of Parole Hearing’s Denial of
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Parole Is without Merit
17
In Ground Two, petitioner challenges his denial of parole, asserting in part
18 that the Board of Parole Hearings did not take into account his youth at the time of
19 his offenses in denying parole and that the denial of parole after serving 40 years
20 ///
21
22 1After discussing his crimes at the parole hearing, petitioner volunteered:
23
I should be on death row. I shouldn’t even be here, today. . . . I didn’t do no parole
24 plans [sic], I didn’t do no relapse prevention plan [sic]. And I did it both times
when I came in here. And the reason why I did that because I wanted you guys to
25 see that I came in here really to express a deep regret and sorrow for what I did. I
should never get on this – I should never be on the street, period. I shouldn’t – I
26
shouldn’t even be living.
27
(Exhibit A. at 124-25). Petitioner’s counsel at the hearing also noted that petitioner did not expect
28 to get a parole release date from the hearing. (Exhibit A at 191-92).
1 || amounts to a disproportionate term of incarceration for his crimes committed while
2 || he was a “child.” (Petition at 6, 18).
3 As explained above, petitioner has not shown that his sentence is
4 || disproportionate to his crimes. Petitioner’s claim that his parole denial after 40
5 || years of incarceration has rendered his sentence disproportionate to his crimes does
6 || not merit relief under the Eighth Amendment. See Baumann v. Ariz. Dep’t of Corr.,
7 || 754 F.2d 841, 846 (9th Cir. 1985) (prisoner’s disappointment from the failure to
g allow his release from prison is not cruel and unusual punishment; noting such
9 “disappointment does not offend the standards of decency in modern society’’).
10 “There is no constitutional or inherent right of a convicted person to be

4 conditionally released before the expiration of a valid sentence.” Greenholtz v.
Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). In
some instances, however, state statutes may create liberty interests in parole release
entitled to protection under the federal Due Process Clause. See Board of Pardons v.
Allen, 482 U.S. 369, 371 (1987); Greenholtz, 442 U.S. at 12. The Ninth Circuit has
held that California’s statutory provisions governing parole create such a liberty
16 || interest. See Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir. 2011); Hayward v.
M7 Marshall, 603 F.3d 546, 555 (9th Cir. 2010) (en banc), overruled on other grounds
18 | by Swarthout v. Cooke, 562 U.S. 216 (2011).
19 “In the context of parole, . . . the procedures required are minimal.”
20 || Swarthout, 562 U.S. at 220. Due Process requires that the State furnish a parole
21 | applicant with an opportunity to be heard and a statement of reasons for a denial of
22 || parole. Greenholtz, 442 U.S. at 16; see also Swarthout, 562 U.S. at 220. “The
23 || Constitution does not require more.” Greenholtz, 442 U.S. at 16; accord Swarthout
24 | v. Cooke, 562 U.S. at 220 (citation omitted); see also Roberts, 640 F.3d at 1046
25 |
‘In Swarthout, the Supreme Court did not reach the question of whether California law
creates a liberty interest in parole, but observed that the Ninth Circuit’s affirmative answer to this
27 || question “is a reasonable application of our cases.” Swarthout, 562 U.S. at 219-20 (citations
omitted). The Ninth Circuit held that Swarthout “did not disturb our conclusion that California
28 || law creates a liberty interest in parole.” Roberts, 640 F.3d at 1045 (citation omitted).
11

1 (“there is no substantive due process right created by the California parole scheme”).
2 In the parole context, then, “[d]ue process is satisfied as long as the state provides an
3 inmate seeking parole with ‘an opportunity to be heard and . . . a statement of the
4 reasons why parole was denied.’” Roberts, 640 F.3d at 1046 (quoting Swarthout,
562 U.S. at 220).
5
Petitioner does not contend, and the record does not show, that petitioner was
6
denied the requisite procedural safeguards. Petitioner had a lengthy hearing during
7
which petitioner and his counsel had ample opportunity to be heard, and the Board
8
issued a written statement of its reasons for denying petitioner parole. See Exhibit
9
A filed with the Petition. Petitioner plainly received all process that was due during
10
his 2016 parole hearing.
11
The record also clearly belies any argument that the Board of Parole Hearings
12
did not consider that petitioner was a youthful offender in deeming him not suitable
13
for parole. The Board cited petitioner’s youth at the time of the offense in weighing
14
whether he was suitable for parole and found that he was not suitable. See Exhibit
15
A at 3 (Board noting at the outset of the hearing, “[Petitioner] is a juvenile offender,
16
so great weight will be given to those youthful offender factors that are identified in
17
Penal Code 3051.”); Exhibit A at 118 (Commissioner noting to petitioner’s counsel,
18 “I’m just trying to understand his youthful thinking”); Exhibit A at 151
19 (Commissioner stating, “I understand the youthful characteristics. I understand
20 impulsitivity. I understand your not appreciating the consequences of your actions.
21 I understand a lot of that. . .”); Exhibit A at 183 (Commissioner noting that the
22 psychological assessment “did factor in the youthful offender characteristics. The
23 doctor looked at the fact that you were 16 years old, you were a youthful offender,
24 and spends a few paragraphs of the report on that factor.”); Exhibit A at 197-98
25 (Board stating in the decision, “The Panel notes that Mr. Reece qualifies as a youth
26 offender under the provisions of Senate Bill 260, and so the Panel was required and
27 actually did give great weight to the youthful offender factors in concluding the
diminished culpability of youth compared to adults, the hallmark features of youth
28
1 as well as the subsequent growth and maturity that the inmate has attained since his
2 incarceration. . . . And after weighing all of the relevant and reliable information we
3 have concluded that Mr. Reece currently poses an unreasonable risk to the public
4 and a threat to public safety. And he is therefore not suitable for parole.”); Exhibit
A at 210 (Board decision stating that the psychologist factored in the youthful
5
offender characteristics and found petitioner still posed a moderate risk for violent
6
re-offense); see also Exhibit B at 11-12 (psychological assessment considering
7
petitioner’s youth and finding he posed a moderate risk).
8
For the foregoing reasons, based on the current record and arguments it
9
appears that petitioner is not entitled to federal habeas relief on any claim
10
challenging the decision to deny him parole.
11
III. CONCLUSION AND ORDER
12
For the reasons discussed above, it appears that the Petition is untimely,
13
without merit, and that petitioner is not entitled to habeas relief on his claims.
14
Petitioner is therefore ORDERED TO SHOW CAUSE by not later than June 25,
15
2021, why this action should not be dismissed for untimeliness and/or failing to
16
raise a claim meriting federal habeas relief. Petitioner is advised that he has the
17
right to submit declarations, affidavits, or any other evidentiary materials relative to
18 the timeliness issue with his response to this Order to Show Cause. All affidavits
19 and declarations must be signed under penalty of perjury by persons having personal
20 knowledge of the facts stated in the affidavits or declarations.
21 Instead of filing a response to the instant Order to Show Cause, petitioner may
22 request a voluntary dismissal of this action pursuant to Federal Rule of Civil
23 Procedure 41(a). If he elects to proceed in that manner, he may sign and return the
24 attached Notice of Dismissal. However, petitioner is advised that any dismissed
25 claims may later be subject to dismissal with prejudice as time-barred under
26 28 U.S.C. § 2244(d)(1).
27 Petitioner is cautioned that the failure timely to respond to this Order to
Show Cause and/or to show good cause may result in the dismissal of this
28
1 action based upon petitioner’s claims being time-barred and/or without merit,
2 petitioner’s failure to comply with the Court’s order, and/or petitioner’s failure
3 to prosecute.
4
IT IS SO ORDERED.3
DATED: June 4, 2021
5
______________/s/___________________
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Honorable Jacqueline Chooljian
7 UNITED STATES MAGISTRATE JUDGE
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3The Court’s determinations and order herein constitute non-dispositive rulings on pretrial
25 matters. To the extent a party disagrees with such non-dispositive rulings, such party may file a
motion for review by the assigned District Judge within fourteen (14) days. See Local Rule 72-
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2.1. To the extent a party believes the rulings to be dispositive, rather than non-dispositive, such
27 party has the right to object to this Court’s determination that the rulings are non-dispositive
within fourteen (14) days. A party will be foreclosed from challenging the rulings herein if such
28 party does not seek review thereof, or object thereto.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10041042. Public record. Not legal advice.