Vaught IV v. Allison

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ELBERT LEE VAUGHT, IV, Case No.: 3:21-cv-0408-CAB-AGS

12 Petitioner,

ORDER DENYING RESPONDENT’S

13 v. MOTION TO DISMISS PETITION

FOR WRIT OF HABEAS CORPUS

14 KATHLEEN ALLISON, Secretary,

15 Respondent. (ECF No. 9)

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18 I. INTRODUCTION

19 On March 5, 2021, Petitioner Elbert Lee Vaught, IV (“Petitioner” or “Vaught”), a

20 state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28

21 U.S.C. § 2254, challenging his 2019 denial of parole by the California Board of Parole

22 Hearings’ (BPH) and his continued incarceration. Pet, ECF No. 1 at 1. Respondent has

23 filed a Motion to Dismiss the Petition. ECF No. 9. The Court has reviewed the Petition,

24 the Motion to Dismiss, the Opposition to the Motion to Dismiss (ECF No. 10), the

25 relevant documents filed in this case, and the legal arguments presented by both parties.

26 For the reasons discussed below, the Court DENIES the motion to dismiss.

27 / / /

28 / / /

1 II. PROCEDURAL BACKGROUND

2 A. Vaught’s Original Conviction and State Court Proceedings

3 In 1996, Vaught was convicted of burglary and receiving stolen property. See Pet.,

4 ECF No. 1, Ex. A at 17. Petitioner also admitted to suffering six prior strike convictions.

5 Id. Under California’s Three Strikes Law, Vaught was sentenced to an indeterminate

6 sentence of 25 years to life for the burglary, plus a five-year enhancement for suffering a

7 prior serious felony. See id. Vaught’s conviction and sentence were affirmed on direct

8 appeal in 1998. See id.

9 B. Passage of Proposition 57

10 In 2016, California voters passed Proposition 57 which amended the California

11 Constitution, and modified the eligibility for early parole consideration by adding Article

12 I, Section 32 to the California Constitution. See Jones v. Allison, 9 F.4th – , 2021 WL

13 3700345 at *4 (9th Cir. Aug. 20, 2021). Under section 32(a)(1), “Any person convicted

14 of a nonviolent felony offense and sentenced to state prison shall be eligible for parole

15 consideration after completing the full term for his or her primary offense.” Cal. Const.,

16 art. I, § 32(a)(1). For purposes of section 32(a)(1), “the full term for the primary offense

17 means the longest term of imprisonment imposed by the court for any offense, excluding

18 the imposition of an enhancement, consecutive sentence, or alternative sentence.” Id. The

19 California Department of Corrections (“CDCR”) was directed to “adopt regulations in

20 furtherance of these provisions, and the Secretary of [CDCR] shall certify that these

21 regulations protect and enhance public safety.” Cal. Const., art. I, § 32(b); see also In re

22 Gadlin, 31 Cal. App. 5th 784, 788 (Ct. App. 2019).

23 In 2017 and 2018, the CDCR promulgated regulations defining a nonviolent

24 offender as an inmate “who is not (1) condemned, incarcerated for a term of life without

25 the possibility of parole, or incarcerated for a term of life with the possibility of parole;

26 (2) serving a term of incarceration for a violent felony within the meaning of Penal Code

27 section 667.5, subdivision (c); or (3) ‘[c]onvicted of a sexual offense that requires

28 registration as a sex offender under Penal Code section 290.” Alliance for Constitutional

1 Sex Offense Laws v. Dep’t of Corr. & Rehab., 258 Cal. Rptr. 3d 498, 501 (Ct. App.

2 2020). Thus, the CDCR regulations “initially excluded from early parole consideration

3 nonviolent felony offenders sentenced to indeterminate sentences under California's

4 Three Strikes Law.” See Jones, 9 F.4th ––, 2021 WL 3700345 at *6.

5 In May 2018, the California Court of Appeal held that the CDCR regulations were

6 inconsistent with Section 32 to the extent they excluded nonviolent offenders who were

7 sentenced to indeterminate life sentences. Id. at *2 (citing In re Edwards, 237 Cal. Rptr.

8 3d 673, 682 (Ct. App. 2018)). In Edwards, the court stated that the CDCR’s “adopted

9 regulations impermissibly circumscribe[d] eligibility for Proposition 57 parole by barring

10 relief for Edwards and other similarly situated inmates serving Three Strikes sentences

11 for nonviolent offenses.” Edwards, 237 Cal. Rptr. 3d at 682. The appellate court voided

12 the provisions of section 32 that were inconsistent with its opinion. See id. In 2019, the

13 CDCR amended the regulations to extend eligibility for early parole consideration to

14 “state prisoners serving indeterminate sentences for nonviolent third-strike offenses.” See

15 Jones, 9 F.4th –– , 2021 WL 3700345 at *2 (citing Cal. Code Regs. tit. 15, § 2449.30

16 (2019)).

17 C. Vaught’s 2019 Parole Denial and State Court Review

18 After the CDCR regulations were amended in 2019, Petitioner, who is serving an

19 indeterminate prison sentence of 30 years-to-life for the non-violent crime of burglary,

20 became eligible for early parole consideration under Proposition 57. See Cal. Code. Regs.

21 t.t 15, § 244.9.30. On December 26, 2019, the BPH found Vaught unsuitable for parole.

22 See Pet., ECF No. 1, Ex. A at 17.1

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24 1 While it is clear Vaught had a BPH hearing in 2019, after which he was denied parole, the

Court notes that Respondent has failed to lodge even a partial transcript of the hearing. Indeed,

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Respondent has failed to lodge any primary documents related to Vaught’s 2019 hearing and the

26 BPH’s ultimate decision. Instead, in a footnote of Respondent’s Memorandum of Points and

Authorities, Respondent directs the Court to search the CDCR “Inmate locator” website. See

27 ECF No. 9-1 at 4, fn. 4. Even if the Court were willing to excuse Respondent’s failure to lodge

the necessary documents, and instead refer to the CDCR website, the information provided there

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1 Vaught filed a petition for writ of habeas corpus in the Orange County Superior

2 Court on April 27, 2020, challenging the denial of his parole. Id; see also Resp’t

3 Lodgment No. 1, ECF No. 8 at 4. On May 4, 2020, the Orange County Superior Court

4 denied the petition in a reasoned decision. Pet., ECF No. 1, Ex. A at 17–22. Vaught then

5 filed a habeas petition in the California Court of Appeal on June 30, 2020. ECF No. 8,

6 Ex. 3 at 23. The appellate court denied the petition on July 10, 2020. Pet., ECF No. 1, Ex.

7 A at 16. Finally, Vaught filed a petition for writ of habeas corpus in the California

8 Supreme Court on July 16, 2020. Id. at 24. In that petition, Vaught raised three claims:

9 (1) the denial of parole by BPH amounted to cruel and unusual punishment, in violation

10 of the Eighth Amendment; (2) the BPH violated due process when it denied him parole

11 and (3) the BPH relied too heavily on the “Comprehensive Risk Assessment” in

12 determining he was unsuitable for parole. Id. at 25–26. On September 9, 2020, the

13 California Supreme Court denied Vaught’s petition, stating in full: “The petition for

14 review is denied without prejudice to any relief to which petition might be entitled after

15 this court decides Palmer on Habeas Corpus, S256149.” Id. at 15.

16 The state high court issued its decision in Palmer on January 28, 2021. See In re

17 Palmer, 10 Cal. 5th 959 (Cal. 2021). In that case, a prisoner had challenged his sentence

18 as excessive. Palmer argued that after repeated denials of parole, his sentence had

19 become disproportionate under the California Constitution. Id. at 967. The California

20 Supreme Court held that in determining whether a sentence is unconstitutionally

21 disproportionate, “regardless of whether challenge to sentence is brought when sentence

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Details.aspx?ID=H56089 (visited Sept. 2, 2021). There is no transcript of the hearing or any

24 record of the BPH’s reasons for the denial. These are documents which Respondent should have

lodged with the Court, as directed in this Court’s April 6, 2021 Order to Respond. See ECF No.

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5 at 2 (ordering Respondent to “lodge with the Court all records relevant to respondent’s

26 contention[s].”) Indeed, even if this information were available on the CDCR website, it would

not be reliable evidence for this Court. See Inmate Locator Disclaimer,

27 https://inmatelocator.cdcr.ca.gov/ (visited Sept. 21, 2021) (stating “CDCR makes no

representation, express or implied, that the information on this site is complete, timely or

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1 is first imposed or after repeated parole denials, the inquiry must focus on whether the

2 punishment is grossly disproportionate to the offense and the offender or, stated another

3 way, whether the punishment is so excessive that it shocks the conscience and offends

4 fundamental notions of human dignity.” Id. at 972. In analyzing a parole case exclusively

5 under the California Constitution, the court in Palmer stated that “when a court assesses

6 the constitutionality of a prison term, it must be mindful of the Legislature’s broad

7 discretion over the types and limits of punishment, regardless of whether the sentence

8 being challenged is a specific term fixed by statute or an indeterminate term where the

9 Board [of Parole Hearings] has authority to order release within statutory parameters.” Id.

10 at 971. The court reiterated, however, that “[i]t remains the judiciary’s responsibility to

11 decide whether a prison term has become excessive, and a court properly respects the

12 Legislature’s prerogative not by performing some ritualistic deference, but by analyzing

13 the challenged punishment under the traditional, lenient legal standard we set forth in [In

14 re] Foss [(1974)] 10 Cal.3d 910 . . . and Lynch, supra, 8 Cal.3d 410[.].” Palmer, 10 Cal.

15 5th at 971.

16 It appears that after the court issued its opinion in Palmer, Vaught attempted to file

17 a renewed petition in the California Supreme Court. See Pet., ECF No. 1, Ex. A at 14. On

18 February 8, 2021, however, the California Supreme Court returned the petition to Vaught

19 unfiled, along with a letter stating: “The order denying your petition for writ of habeas

20 corpus on September 9, 2020 . . . was final forthwith and may not be reconsidered. Please

21 rest assured, however, that the petition, and the contentions made therein, were

22 considered by the entire court, and that the denial expresses the decision of the court on

23 this matter.” Id.

24 On March 5, 2021, Vaught filed the instant federal Petition for Writ of Habeas

25 Corpus pursuant to 28 U.S.C. § 2254, in this Court. Id. at 1. On July 2, 2021, Respondent

26 filed a Motion to Dismiss. ECF No. 9. Vaught filed his Opposition on July 22, 2021. ECF

27 No. 10.

28 / / /

1 III. DISCUSSION

2 Vaught raises three claims in his Petition: (1) his due process rights were violated

3 by the Board of Parole Hearings; (2) denial of parole rendered his sentence a violation of

4 the Eighth Amendment; and (3) the denial of parole was a violation of his right to Equal

5 Protection. ECF No. 1 at 6–8. Respondent argues the Petition should be dismissed

6 because “Vaught has neither established federal subject matter jurisdiction nor federal

7 habeas jurisdiction.” Resp’t Mem. P. & A. Supp. Mot., ECF No. 9-1 at 2. Respondent

8 further contends the petition must be dismissed because Vaught has failed to exhaust

9 state judicial remedies as to any of his claims and his “cruel and unusual punishment

10 claim is not viable under the Antiterrorism and Effective Death Penalty Act of 1996

11 (AEDPA).” Id. at 5–7. Finally, Respondent argues Vaught’s Eighth Amendment claims

12 should be dismissed because it is not “viable.” Id. at 7–8. In his Opposition, Vaught

13 argues Respondent’s Motion should be denied because the Court has subject matter

14 jurisdiction because his claims are fully exhausted and cognizable on federal habeas. See

15 ECF No. 10.

16 A. Subject Matter Jurisdiction

17 In the context of federal habeas claims, a motion to dismiss is construed as arising

18 under Rule 4 of the Rules Governing Section 2254 Proceedings in the United States

19 District Courts which “explicitly allows a district court to dismiss summarily the petition

20 on the merits when no claim for relief is stated.” O’Bremski v. Maass, 915 F.2d 418, 420

21 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)).

22 Accordingly, a respondent is permitted to file a motion to dismiss after the court orders a

23 response, and the court should use Rule 4 standards in reviewing the motion. See Hillery

24 v. Pulley, 533 F. Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982). Rule 4 specifically provides

25 that a district court may dismiss a petition if it “plainly appears from the face of the

26 petition and any exhibits annexed to it that petitioner is not entitled to relief in the district

27 court . . ..” Rule 4 of the Rules Governing Section 2254 Cases. For purposes of clarity,

28 the Court will address Vaught’s second claim, based on the Eighth Amendment, first.

1 1. Eighth Amendment Cruel and Unusual Punishment

2 Vaught contends he has served “excessive time . . . in violation of federal and state

3 constitutional proscriptions against cruel and unusual punishment.” Pet., ECF No. 1 at 7.

4 Vaught argues he “became eligible for early parole consideration in 2002 [after serving

5 six years––the longest term for burglary, absent enhancements] due to Prop. 57 being

6 retroactive. . . Petitioner was taken to [BPH] on December 26, 2019, 3 years after passage

7 of Prop. 57, where I was denied for 3 years even though petitioner’s crime was

8 nonviolent and has a primary [sentence] of 6 years.” He states he has now been

9 “incarcerated for 25 years on a nonviolent crime with a primary of 6 years.” Id.

10 Respondent contends the court lacks subject matter jurisdiction of the claim. The

11 plain language of the habeas statute states that “a district court shall entertain an

12 application for a writ of habeas corpus on behalf of a person in custody pursuant to the

13 judgment of a State court only on the ground that he is in custody in violation of the

14 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. Here, Vaught

15 claims that after being denied parole, his incarceration (which at the time had been for 23

16 years and 9 months) was “disproportionate” to his non-violent crime of burglary. See

17 Pet., ECF No. 1 at 7. Vaught explicitly states that his claim rests at least in part on the

18 federal “constitutional proscription against cruel and unusual punishment.” Id.

19 Respondent claims Vaught’s Eighth Amendment claim is not based on federal

20 law, but rather “based on the state’s decision to deny him nonviolent parole under

21 California law, and his subsequent, continued incarceration on a validly imposed

22 sentence.” Resp’t Mem. P. & A. Supp. Mot., ECF No. 9-1 at 3 (emphasis in original). Yet

23 Respondent does not show that Petitioner’s Eighth Amendment claim is not cognizable in

24 this habeas action. A claim that a sentence is “disproportionate” to the crime is actionable

25 under the Eighth Amendment. See, e.g., Ewing v. Davis, 538 U.S. 11, 20 (2003) (stating

26 the Eighth Amendment contains a “narrow proportionality principle” that “applies to

27 noncapital sentences”). Respondent contends that Vaught failed to “cite any supporting

28 federal authority” for his Eighth Amendment claim and “disguises [the claim] as

1 involving federal issues” when they are actually “grounded in state law.” Resp’t P. & A.

2 Supp. Mot., ECF No. 9-1 at 3. This ignores the fact that Vaught specifically alleges a

3 “violation of federal . . . constitutional proscriptions against cruel and unusual

4 punishment.” Pet, ECF No. 1 at 7. That he also alleges a violation of the California

5 Constitution does not render his federal claim non-cognizable.

6 Lastly, the Respondent’s argument that Vaught’s Eighth Amendment must be

7 dismissed because it is “not viable under AEDPA,” is unpersuasive. As noted above,

8 Petitioner challenges the denial of parole by the California BPH on the grounds that it

9 rendered his sentence so long that it now constitutes cruel and unusual punishment, in

10 violation of the Eighth Amendment, by making his sentence grossly disproportionate to

11 the non-violent crime he committed. See Pet., ECF No. 1 at 8. While it is true that

12 “successful challenges to the proportionality of particular sentences should be

13 exceedingly rare,” Ewing, 538 U.S. at 22 (citing Hutto v. Davis, 454 U.S. 370, 374

14 (1982)), “the fact that petitioner may face a high hurdle to succeed on his claim does not

15 mean that he has not stated one.” Drakeford v. Lizaraga, 2:17-cv-1571 MCE DB, 2018

16 WL 1083888, at *1 (E.D. Cal. Feb. 28, 2018), report and recommendation adopted, 2:17-

17 cv-1571 KJM DB, 2018 WL 1693448 (E.D. Cal. Apr. 6, 2018). Indeed, several district

18 courts have concluded that a claim that the denial of parole rendered a sentence so long

19 that it violated the Eighth Amendment stated a cognizable claim and denied motions to

20 dismiss on that basis. See id.; see also Stephen v. Matteson, No. 220CV1003KJMKJNP,

21 2020 WL 6316348, at *2 (E.D. Cal. Oct. 28, 2020) (concluding the petitioner’s claim that

22 the Board’s decision finding him “unsuitable for parole after he had served 31 years,

23 several years beyond his base term of 19 years, rendered his sentence disproportionate in

24 violation of the Eighth Amendment’s prohibition against cruel and unusual punishment”);

25 Zaccardi v. Arnold, No. 2:17-cv-1405 MCE KJN, 2018 WL 2328886 (E.D. Cal. May 23,

26 2018) (denying motion respondent’s motion to dismiss petitioner’s Eighth Amendment

27 claim based on disproportionate sentence following parole denial); see also McKissick v.

28 Gastelo, No. 17-cv-2986-SJO-AS, 2017 WL 7049525, at **7–9 (C.D. Cal. Dec. 13,

1 2017) (claim that governor’s reversal of Board’s decision violated the Eighth

2 Amendment decided on the merits); Alkebu–Lan v. Hatton, No. 16-cv-8378–DDP-KK,

3 2017 WL 2222378 (C.D. Cal. Feb. 16, 2017) (claim that denial of parole amounted to

4 cruel and unusual punishment decided on the merits); Jones v. Gastelo, 2016 WL

5 4435098 (C.D. Cal. June 20, 2016) (same). The Court therefore concludes Petitioner has

6 stated a cognizable Eighth Amendment claim under 28 U.S.C. § 2254.

7 2. Due Process

8 Next, Vaught contends that he was denied Due Process under U.S. Constitution

9 when he was denied parole. Pet., ECF No. 1 at 6. Respondent argues the claim must be

10 dismissed because it “do[es] not invoke federal habeas jurisdiction.” Resp’t Mem. P. &

11 A. Supp. Mot., ECF No. 9-1 at 4.

12 Respondent first contends the claim is non-cognizable because success would only

13 entitle him to a new parole hearing, not immediate release. Proposition 57 provides that

14 certain nonviolent offenders may be eligible for parole consideration at an accelerated

15 date. The new law does not require a prisoner’s release. See, e.g., Travers v. California,

16 2018 WL 707546, at *3 (N.D. Cal. Feb. 5, 2018) (“Proposition 57 . . . only makes

17 [petitioner] eligible for parole consideration, and does not command his release from

18 prison.”). Federal district courts have held that claims alleging violations of Proposition

19 57 lie outside the core of habeas corpus because success on such claims would not

20 necessarily lead to the petitioner’s immediate or speedier release. As one court explained:

21 Proposition 57, if applicable, only makes Petitioner eligible for parole

consideration, and does not command his release from prison. He still must

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be found suitable for parole before he may be released from prison. If he

23 prevails on any of his claims, the remedy would be a parole consideration

hearing rather than an outright release from prison. Under Nettles,

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Petitioner’s only potential recourse in federal court is to file a § 1983

25 complaint because his claim falls outside the core of habeas corpus.

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27 Grant v. Sherman, 2019 WL 4302202, at *3 (E.D. Cal. Sept. 11, 2019); see also

28 Alexander v. Gastelo, 2019 WL 1104616, at *2 (C.D. Cal. Jan. 29, 2019), report and

1 recommendation adopted, 2019 WL 1099980 (C.D. Cal. Mar. 8, 2019) (“[E]ven if

2 Petitioner is correct that he is entitled to the provisions of Proposition 57 . . . at best,

3 Petitioner would receive a discretionary parole hearing at an earlier date where the parole

4 board could still decline to grant parole. Thus, Petitioner’s claims under Proposition 57

5 do not fall within the ‘core of habeas corpus.’”); Blanco v. Asuncion, 2019 WL 2144452,

6 at *2 (S.D. Cal. May 16, 2019), report and recommendation adopted sub nom. Blanco v.

7 Diaz, 2019 WL 3562215 (S.D. Cal. Aug. 6, 2019) (“Proposition 57 does not necessarily

8 make petitioner eligible for an earlier release from prison.”). These cases are different

9 from Vaught’s. Here, Petitioner is not simply challenging the application of Proposition

10 57. Unlike the cases discussed above, in which prisoners argued they were improperly

11 deemed ineligible for an early parole hearing under Proposition 57, here, Petitioner was

12 deemed eligible for an early parole hearing and is now challenging the result of that

13 hearing. Thus, Vaught challenges the due process afforded him at that hearing––not the

14 failure to find him eligible to have an early hearing.

15 Next, Respondent argues the court lacks subject matter jurisdiction over habeas

16 corpus petitions which challenge the denial of parole because success on the claim would

17 not “necessarily spell speedier release.” Id. at 4 (citing Wilkinson v. Dotson, 544 U.S. 74,

18 82 (2005); Skinner v. Switzer, 562 U.S. 521, 525 n. 13 (2011)). But the Supreme Court

19 has never held that due process challenges to a parole denial can never be raised on

20 federal habeas. Indeed, the Court simply held that the inquiry is limited to whether the

21 prisoner was given the opportunity to be heard and received a statement of the reasons

22 why parole was denied. See Swarthout v. Cooke, 562 U.S. 216, 221 (2011); Miller v.

23 Oregon Bd. of Parole, 642 F.3d 711, 716 (9th Cir. 2011) (noting that in the context of

24 parole eligibility decisions the due process right entitles a prisoner a fair hearing and a

25 statement of reasons for a parole board’s decision).

26 Here, Respondent argues Vaught had “all the process he was due” because Vaught

27 failed to specifically deny in his Petition that he received notice, an opportunity to be

28 heard and the reasons for his parole denial. Resp’t Mem. P. & A. Supp. Mot., ECF No. 9-

1 1 at 3. It is true that in Swarthout, the Court was “unequivocal in holding that if an inmate

2 seeking parole receives an opportunity to be heard, a notification of the reasons as to

3 denial of parole, and access to their records in advance, that should be the beginning and

4 the end of the inquiry into whether the inmate received due process.” Pearson v. Muntz,

5 639 F.3d 1185, 1191 (9th Cir. 2011). But here, Respondent has failed to provide evidence

6 to support their contention. As discussed above, Respondent has not lodged the transcript

7 of the BPH proceedings, a copy of the BPH decision or even partial documentary

8 evidence that shows Vaught was provided an opportunity to be heard and the reasons for

9 the denial. The Court is not inclined to rule on Respondent’s claim without the relevant

10 portion of the state court record. Therefore, the Court finds it has subject-matter

11 jurisdiction over Vaught’s Due Process claim.

12 3. Equal Protection

13 Finally, Vaught claims his Equal Protection rights were violated by his denial of

14 parole because inmates with indeterminate terms are treated differently under Proposition

15 57 than those who received determinate terms. Pet., ECF No. 1 at 8. Respondent argues

16 Petitioner’s Equal Protection claim must be dismissed because it is not a federal claim.

17 Resp’t Mem. P. & A. Supp. Mot., ECF No. 9-1 at 3. Specifically, Respondent contends

18 Vaught’s Equal Protection claim is “based on California’s processes for reviewing

19 indeterminately and determinately sentenced inmates for nonviolent parole review—a

20 state created parole scheme.” Id.

21 Respondent’s argument without merit. Vaught alleges his Equal Protection rights

22 were violated because, as an inmate sentenced to an indeterminate life term, the

23 procedure for parole hearings is different for him than the procedure for inmates

24 sentenced to determinate terms, despite both classes being eligible for hearings under

25 Proposition 57. The Equal Protection Clause is enshrined in the Fourteenth Amendment

26 of the United States Constitution and “commands that no State shall ‘deny to any person

27 within its jurisdiction the equal protection of the laws,’ which is essentially a direction

28 that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne

1 Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216,

2 (1982)). An Equal Protection claim may be brought by a “class of one” when a habeas

3 petitioner alleges he has been treated differently from others similarly situated and there

4 is no rational bases for the difference in treatment. SeaRiver Maritime Financial

5 Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). Whatever the merits of

6 Vaught’s claim, it is unquestionably cognizable on federal habeas. See 28 U.S.C. § 2254

7 (stating district courts have jurisdiction under § 2254 when a petitioner is in custody

8 pursuant to a state court judgment and the petition alleges his custody is in violation of

9 the laws of the U.S. United States Constitution or treaties).

10 4. Conclusion

11 Based on the foregoing, the Court finds Vaught has stated cognizable Eighth

12 Amendment, Due Process and Equal Protection claims under 28 U.S.C. § 2254.

13 Respondent’s Motion to Dismiss for lack of subject-matter jurisdiction is DENIED.

14 B. Exhaustion

15 Next, Respondent argues the Petition must be dismissed because Vaught has failed

16 to exhaust his state judicial remedies as to each claim. Resp’t Mem. P. & A. Supp.

17 Motion, ECF No. 9-1 at 5–7. It is well-established that a habeas petitioner must first

18 exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S.

19 129, 133–34 (1987); Rose v. Lundy, 455 U.S. 509, 515–16 (1982); McNeeley v. Arave,

20 842 F.2d 230, 231 (9th Cir. 1988). To do so, a petitioner must present the California

21 Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or

22 her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34.

23 “To provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly

24 present’ his claim in each appropriate state court (including a state supreme court with

25 powers of discretionary review), thereby alerting that court to the federal nature of the

26 claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364,

27 365–66 (1995)); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A petitioner may

28 indicate a federal claim by citing a “federal source of law on which he relies or a case

1 deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’”

2 Baldwin, 541 U.S. at 32.

3 1. Due Process

4 Vaught raised his federal due process claim in the California Supreme Court. See

5 Pet., ECF No. 1 at 26. He stated clearly in his petition to the high state court that his due

6 process claim rested on “the California Constitution along with the U.S. Constitution.” Id.

7 at 26, 27. Respondent contends that this was insufficient because Vaught’s claim “rests

8 entirely on state law.” Resp’t Mem. P. & A. Supp. Motion, ECF No. 9-1 at 6. This is

9 simply not the case.2 Vaught’s claim is based on both the state and federal constitutions.

10 This is sufficient to have “fairly presented” the federal aspect of the claim to the

11 California Supreme Court. See Baldwin, 541 U.S. at 32 (finding a petitioner may indicate

12 a federal claim by “simply labeling [it] ‘federal’”).

13 2. Cruel and Unusual Punishment

14 Respondent’s argument that Vaught’s Eighth Amendment claim is unexhausted is

15 similarly unpersuasive. In his petition filed in the California Supreme Court, Vaught

16 argued that after being denied parole in 2019, his resulting sentence amounted to cruel

17 and unusual punishment under the “California Constitution along with the U.S.

18 Constitution.” Pet, ECF No. 1, Ex. A at 26. That he also raised a similar claim based on

19 the California Constitution does not render his federal claim unexhausted. See Baldwin,

20 541 U.S. at 32.

21 / / /

22

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2 The Court notes that Respondent failed to lodge a copy of Vaught’s petition for writ of habeas

24 corpus filed with the California Supreme Court. While Petitioner attached a copy of the petition,

this Court’s Order to Respond directed Respondent to “lodge with the Court all records relevant

25

to respondent’s contention[s]” See Order Setting Briefing Sched., ECF No. 5 at 2–3. Even as to

26 the petitions Respondent did lodge (one petition filed in the trial court and the other filed in the

appellate court) Respondent elected to exclude the attached exhibits––instead informing the

27 Court they would “provide the exhibits on request.” Resp’t Mem. P. & A. Supp. Mot., ECF No.

9-1 at 6 fn. 4. As noted above, the Court ordered all relevant documents to be lodged with the

28

1 Respondent contends that the claim is unexhausted because the California Supreme

2 Court ultimately denied Vaught’s habeas petition “without prejudice to any relief to

3 which petitioner might be entitled after this court decides Palmer on Habeas Corpus,

4 S256149.” See Pet., ECF No. 1, Ex A at 15. Respondent argues Vaught had an

5 opportunity to re-file his Eighth Amendment claim after the Supreme Court’s decision in

6 Palmer but failed to do so, rendering his claim unexhausted. Resp’t Mem. P. & A. Supp.

7 Mot., ECF No. 9-1 at 6–7. But the issue in Palmer was based entirely on the California

8 Constitution. See Palmer, 10 Cal. 5th at 968 fn.2 (“We analyze Palmer’s claims

9 exclusively under the California Constitution.”)3 Thus, the invitation to return to

10 California Supreme Court after the decision Palmer does not appear to apply to Vaught’s

11 federal Eighth Amendment claim.

12 In addition, on February 8, 2021, Vaught did attempt to file a renewed petition

13 with the California Supreme Court after it issued its decision in Palmer, but the petition

14 was returned unfiled, along with a letter from the court stating: “The order denying your

15 petition for writ of habeas corpus on September 9, 2020 . . . was final forthwith and may

16 not be reconsidered. Please rest assured, however, that the petition, and the contentions

17 made therein, were considered by the entire court, and that the denial expresses the

18 decision of the court on this matter.” Pet., ECF No. 1, Ex. A at 14. While it is unclear

19 why the California Supreme Court rejected Vaught’s petition for filing when it had

20 explicitly given him leave to do so after Palmer was decided, it is irrelevant to this

21 Court’s inquiry because as noted above, Palmer was predicated entirely on state law.

22 Vaught’s federal Eighth Amendment claim was exhausted when he presented it to the

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24 3 The issue in Palmer was whether, under the California Constitution, “inmates may challenge

their continued incarceration as constitutionally excessive when the Board repeatedly denies

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parole, and what remedy is available when continued incarceration becomes constitutionally

26 excessive.” Palmer, 10 Cal. 5th at 957. Ultimately the court held that under Article I, section 17

of the California Constitution, “a life-top inmate whose imprisonment has become excessive —

27 but who has been denied parole by the Board — must be able to obtain relief in court by filing a

petition for writ of habeas corpus. . . And [i]f a court then finds the inmate’s continued

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1 California Supreme Court on July 16, 2020 and it was subsequently denied on September

2 9, 2020. See Baldwin, 541 U.S. at 32.

3 3. Equal Protection Claim

4 Finally, Respondent argues that Petitioner’s Equal Protection claim is unexhausted.

5 Resp’t Mem. P. & A. Supp. Mot., ECF No. 9-1 at 6. In his federal Petition, Vaught

6 argues his right to equal protection under the U.S. Constitution was violated because

7 CDCR regulations treat inmates with indeterminate life sentences seeking early parole

8 under Proposition 57 differently from those with determinate sentences. Pet., ECF No. 1

9 at 8. Respondent argues Vaught failed to raise the claim in the California Supreme Court.

10 Resp’t Mem. P. & A. Supp. Mot., ECF No. 9-1 at 6. In this instance, Respondent is

11 correct. Based on the record before this Court it appears Vaught failed to raise his federal

12 equal protection claim in his petition for habeas corpus filed in the highest state court. See

13 Pet., ECF No. 1, Ex. B.

14 When a there are no longer state remedies available to a petitioner, the petitioner

15 meets the “technical requirement for exhaustion” Casey v. Moore, 386 F.3d 896, 920 (9th

16 Cir. 2004) (citing Coleman v. Thompson, 501 U.S. 722, 732 (1991)). Specifically, when a

17 state prisoner fails to exhaust his federal claims in state court and the state court would

18 now find the claims procedurally barred under applicable state rules, the federal claims

19 are deemed “technically exhausted.” Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir.

20 2007 (citing Woodford v. Ngo, 548 U.S. 81, 92–93 (2006)); see also Cooper v. Neven,

21 641 F.3d 322, 327 (9th Cir. 2011). Here, while Vaught failed to present his Equal

22 Protection claim to the state high court, if he attempted to present the claim at this stage–

23 –nearly two years after he was denied parole––his petition would likely be barred by

24 California’s procedural rules barring untimely and successive petitions for writ of habeas

25 corpus. See In re Robbins, 959 P.2d 311, 340 n.34 (Cal. 1998)). Under California law,

26 habeas petitions filed in non-capital cases must be filed “as promptly as the

27 circumstances allow.” See In re Douglas, 200 Cal. App. 4th 236, 242 (Ct. App. 2011).

28 Moreover, the California Supreme Court has held that “presentation of claims in a

1 ‘piecemeal [manner] by successive proceedings’ [are] an abuse of the writ process.” See

2 In re Friend, 11 Cal. 5th 720, 727–28 (2021) (citing In re Horowitz, 33 Cal. 2d 534, 547

3 (Cal. 1949). Thus, Vaught could have, but did not, include his federal Equal Protection

4 claim in his petition to the California Supreme Court. If he attempted to do so now,

5 however, the petition would almost certainly be subject to at least two procedural bars,

6 and therefore the claim is “technically exhausted.” See Smith, 510 F.3d at 1139.

7 Based on the foregoing, the Court declines to find the claim unexhausted. While

8 the claim is not dismissed as exhausted, Respondent is free to raise any other procedural

9 defenses they see fit in their Answer. See King v. LaMarque, 464 F.3d 963, 965 (9th Cir.

10 2006) (“Federal courts will not generally review a question of federal law decided by a

11 state court if its decision rests on a state law ground that is independent of the federal

12 question and adequate to support the judgment.”); see also Souliotes v. Hedgpeth, No.

13 1:06-CV-00667 AWI, 2012 WL 3205433, at *3 (E.D. Cal. 2012) (noting “recent

14 Supreme Court authority requires this Court to consider claims that were not exhausted

15 and no longer capable of review in state court as technically exhausted and subject to the

16 doctrine of procedural default”).

17 4. Conclusion

18 In sum, the Court finds Vaught has exhausted his Eighth Amendment and Due

19 Process claims by raising them in his petition for writ of habeas corpus to the California

20 Supreme Court. Moreover, the Court concludes Vaught’s Equal Protection claim is

21 technically exhausted because if he were to raise it in the state court now, it would likely

22 be procedurally barred under state law.4 See King, 464 F.3d at 965.

23

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4 The Ninth Circuit has stated that the procedural default issue may be considered in conjunction

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with a merits review. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural

26 bar issues are not infrequently more complex than the merits issues presented by the appeal, so it

may well make sense in some instances to proceed to the merits if the result will be the same.”);

27 see also Newsom v Yates, No. 10cv746 WQH-BGS, 2011 WL 1004705, at *3 (“[R]eserving

decision on Respondent's procedural default contentions until after Respondent answers the

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1 CONCLUSION AND ORDER

2 For the reasons discussed above, the Court DENIES Respondent’s Motion to

3 || Dismiss (ECF No. 9).

4 ISSO ORDERED.

5 Dated: September 24, 2021 ( é &

° Hon. Cathy Ann Bencivengo

7 United States District Judge

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