Jose Morales v. Robert Burton

Case 2:22-cv-04117-FLA-MAR Document 4 Filed 06/28/22 Page 1 of 8 Page ID #:124

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-04117-FLA (MAR) Date: June 28, 2022

Title: Jose Morales v. Robert Burton

Present: The Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE

ERICA BUSTOS N/A

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Petitioner: Attorneys Present for Defendants:

N/A N/A

Proceedings: (In Chambers) ORDER TO SHOW CAUSE RE: WHY THIS ACTION

SHOULD NOT BE DISMISSED FOR FAILURE TO STATE A CLAIM

I.

INTRODUCTION

On May 15, 2022, Petitioner Jose Morales (“Petitioner”), proceeding pro se, constructively

filed1 the instant Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) under

28 U.S.C. § 2254 challenging the California Board of Parole Hearings’ (“Board”) June 17, 2020,

decision that Petitioner was unsuitable for parole. ECF Docket No. (“Dkt.”) 1 at 7.

The Court has screened the Petition pursuant to Habeas Rule 4. This preliminary review

revealed defects in the Petition that warrant dismissal. Accordingly, Petitioner is ORDERED to file

a supplemental statement addressing these problems before the Court will require a response from

Respondent.

II.

BACKGROUND

In 1982, Petitioner pled nolo contendere to one count of second-degree murder and was

sentenced to an imprisonment term of fifteen (15) years to life.2 Dkt. 1 at 2; see also California

Dep’t of Corr. v. Morales, 514 U.S. 499, 502 (1995).

Since 1985, Petitioner has brought at least eighteen (18) unsuccessful collateral attacks on the

judgment in California state court. California Court of Appeal Case Number B308788, Appellate

Courts Case Information,

https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=2333514&doc_n

o=B308788&request_token=NiIwLSEmPkw5WyBVSCItSEtJQFQ6USxXIyBeWzJRMCAgCg%3

1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems

the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010)

(citation omitted).

2 Petitioner contends that the sentencing judge did not specify “life,” and only sentenced him to fifteen (15) years.

Dkt. 1 at 2.

CV-90 (03/15) Civil Minutes – General Page 1 of 7

Case 2:22-cv-04117-FLA-MAR Document 4 Filed 06/28/22 Page 2 of 8 Page ID #:125

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-04117-FLA (MAR) Date: June 28, 2022

Title: Jose Morales v. Robert Burton

D%3D (last visited June 22, 2022). Petitioner has also filed several federal habeas petitions

challenging his 1982 conviction. See Morales v. California, No. CV 21-1485-DSF (JEM),

2021 WL 2593644, at *1 (C.D. Cal. May 6, 2021), report and recommendation adopted sub nom.,

No. CV 21-1485-DSF (JEM), 2021 WL 2590161 (C.D. Cal. June 24, 2021) (detailing the procedural

history of the case, including prior habeas petitions).

On June 17, 2020, the Board conducted Petitioner’s ninth parole suitability hearing. Dkt. 1

at 20, 34. During this hearing, Petitioner testified, was represented by counsel, and received a

detailed summary of the Board’s decision to deny parole. Id. at 20–22; Dkt. 1-1 at 49–55. Petitioner

testified that he was innocent of both of his prior murder convictions and claimed that there was no

record of the fingerprint evidence used to convict him in 1982. Dkt. 1 at 7–9, 39, 46. During

closing arguments, the district attorney suggested that Petitioner could be responsible for a total of

four murders because Petitioner was a suspect for at least two other murders but was never charged.

Id. at 17; Dkt. 1-1 at 36–37. The Board concluded that Petitioner posed an unreasonable risk to

public safety and was not suitable for parole. Dkt 1-1 at 49.

On May 15, 2022, Petitioner constructively filed the instant Petition challenging the Board’s

decision to deny parole. Dkt. 1 at 5–6, 10. Petitioner claims that: (1) the Board’s hearing violated

his right to confrontation because he was not provided with “copies of the victim’s certified and

signed fingerprints” dated July 8, 1980; and (2) the Board’s decision resulted in an excessive and

improper sentence of life in violation of the Eighth Amendment. See id. at 5, 8. Petitioner states

that he raised both claims in a habeas petition to the California Supreme Court but provided no

citation or other record to support this assertion. Id. at 5–6.

III.

DISCUSSION

A. COGNIZABLE FEDERAL CLAIM REQUIREMENT

Petitioner appears to rely on California law to challenge his continued incarceration as being

cruel and unusual. Id. at 5. However, the precise contours of his claim are difficult to discern.3 To

the extent that Petitioner seeks to rely upon California law, he fails to present a cognizable claim.

Federal habeas corpus relief is available only when a petitioner has been convicted or

sentenced in violation of the Constitution or laws or treaties of the United States. See Swarthout v.

Cooke, 562 U.S. 216, 219 (2011). It is not available for errors in the interpretation or application of

3 Petitioner also appears to argue that the district attorney failed to comply with California law governing the procedures

for parole hearings. See Dkt. 1 at 7 (citing Cal. Code Regs. tit. 15, § 2030). Petitioner claims that the district attorney

“failed to serve and confront [P]etitioner with evidence of other murders and fingerprint evidence” for Petitioner’s 1982

conviction. Id.

CV-90 (03/15) Civil Minutes – General Page 2 of 7

Case 2:22-cv-04117-FLA-MAR Document 4 Filed 06/28/22 Page 3 of 8 Page ID #:126

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-04117-FLA (MAR) Date: June 28, 2022

Title: Jose Morales v. Robert Burton

state law. Id.; Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Therefore, Petitioner’s claim fails to

the extent that it relies on state law.4

B. FAILURE TO STATE A CLAIM

1. Due process

Petitioner argues that the Board violated his due process rights because he was unable to

contest the evidence against him. See Dkt. 1 at 8. However, because Petitioner received the

“minimal” procedures required by due process, this claim fails.

The Due Process Clause of the Fourteenth Amendment protects individuals against

deprivations of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. “A liberty interest may

arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it may

arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin,

545 U.S. 209, 221 (2005) (citations omitted). Due process analysis proceeds in two steps: first, we

ask “whether there exists a liberty or property interest of which a person has been deprived[;]” if so,

we then ask “whether the procedures followed by the State were constitutionally sufficient.” Cooke,

562 U.S. at 219.

The Ninth Circuit has held that “California’s parole scheme gives rise to a cognizable liberty

interest in release on parole.” McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). Parole

applicants are afforded adequate process so long as they are “allowed an opportunity to be heard”

and “provided a statement of reasons for a denial of parole.” Greenholtz v. Inmates of Neb. Penal

& Corr. Complex, 442 U.S. 1, 16 (1979); See also Cooke, 562 U.S. at 220 (due process is satisfied

where parole applicants were allowed to speak at parole hearings and contest the evidence against

them, had access to their records in advance, and were notified of the reasons for their parole

denial). “The Constitution does not require more.” Greenholtz, 442 U.S. at 16. Consequently,

when a petitioner challenges their parole denial, the only cognizable federal question is whether they

received the “minimal” procedures required by due process. Cooke, 562 U.S. at 220.

Here, Petitioner alleges that he was denied the right to “confront and contest” the evidence

against him. Dkt. 1 at 5. Petitioner claims that the district attorney did not provide copies of the

fingerprint records from Petitioner’s underlying 1982 conviction. Dkt. 1 at 8. Petitioner further

claims that the district attorney provided no evidence of the uncharged murders mentioned during

4 Moreover, to the extent that Petitioner alleges errors in the state postconviction review process, such errors are “not

addressable through habeas corpus proceedings.” Hubbart v. Knapp, 379 F.3d 773, 779 (9th Cir. 2004); see also Ortiz v.

Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (“[T]his court has specifically stated that federal habeas relief is not available

to redress alleged procedural errors in state post-conviction proceedings.”).

CV-90 (03/15) Civil Minutes – General Page 3 of 7

Case 2:22-cv-04117-FLA-MAR Document 4 Filed 06/28/22 Page 4 of 8 Page ID #:127

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-04117-FLA (MAR) Date: June 28, 2022

Title: Jose Morales v. Robert Burton

closing arguments. Id. at 5. However, it is unclear whether Petitioner seeks evidence of the two

uncharged murders or merely evidence that he was a suspect.5

Nevertheless, Petitioner was given the opportunity to be heard and provided with the

Board’s reasons for denying parole. See Dkt. 1-1 at 49–55. These reasons included a finding that

Petitioner would pose a risk to public safety if released, based on his two murder convictions of two

different women under similar circumstances. Id. at 50. The Board also found that Petitioner had

not sincerely examined “some of the more negative aspects of his life and how these experiences

affected his development and . . . contribute[d] to . . . maladaptive personality traits and

interpersonal deficits that may have played a role in his criminality.” Id. at 53.

Additionally, the Board’s decision did not explicitly rely on the fingerprint evidence from

Petitioner’s 1982 conviction.6 See Dkt. 1-1 at 49–54. Rather, the Board only briefly referenced

fingerprint evidence from Petitioner’s 1970 murder conviction. See id. at 51. Further, independent

of the district attorney’s statements, Petitioner’s probation report showed that he was a suspect in

two other murder investigations. Id. at 18, 36–37, 49–54. Even still, “[i]nmates are not entitled to

be apprised of all the evidence relied upon by a parole board in rendering its decision.” Bermudez v.

Duenas, 936 F.2d 1064, 1066 (9th Cir. 1991) (citation omitted).

Petitioner has a copy of the hearing transcript, which reflects that he was allowed to testify

and contest the evidence, he was represented by counsel, and he was notified as to the reasons why

the Board denied parole. Dkts. 1 at 20–58; 1-1 at 1–55. For these reasons, Petitioner’s due process

claim does not merit relief.7 See, e.g., Torricellas v. Garcia, No. CV 10-5717-RSWL (AJW),

2011 WL 1979398, at *1–2 (C.D. Cal. Mar.14, 2011) (rejecting, under Swarthout, claims that the

Parole Board failed to consider petitioner’s submissions and denied her the opportunity to explain

false and unreliable evidence where record showed that she was represented by counsel and afforded

an adequate opportunity to be heard).

2. Eighth Amendment

Petitioner argues that his sentence of over forty (40) years for a second-degree murder

conviction is excessive and in violation of the Eighth Amendment. Dkt. 1 at 5. In Greenholtz, the

5 The district attorney stated that the probation report indicated that Petitioner was a suspect in two other murders.

Dkt. 1-1 at 36–37.

6 In 1970, Petitioner was convicted of first-degree murder and served approximately ten (10) years in prison before being

released on parole. Dkt. 1 at 38–39, 50–51. In 1980, a severed hand was found on the side of a freeway—fingerprint

evidence identified this hand as belonging to Petitioner’s wife and led to his 1982 conviction. See id. at 42.

7 Although Petitioner does not appear to challenge the sufficiency of the evidence to support the Board’s decision, the

Due Process Clause does not include a guarantee of evidentiary sufficiency with respect to parole. Cooke, 562 U.S.

at 220–22 (finding that it is irrelevant whether there was no evidence in the record supporting a parole denial unless

there is a federal right at stake).

CV-90 (03/15) Civil Minutes – General Page 4 of 7

Case 2:22-cv-04117-FLA-MAR Document 4 Filed 06/28/22 Page 5 of 8 Page ID #:128

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-04117-FLA (MAR) Date: June 28, 2022

Title: Jose Morales v. Robert Burton

Supreme Court held that “[t]here is no constitutional or inherent right of a convicted person to be

conditionally released before the expiration of a valid sentence.” Greenholtz, 442 U.S. at 7.

Although Petitioner cites to California authority, which provides that state prisoners can seek habeas

relief on the ground that their sentences become “cruel or unusual” following a parole denial, this

does not qualify as “clearly established federal law” for the purposes of federal review under

AEDPA. Dkt. 1 at 5 (citing In re Palmer, 10 Cal. 5th 959, 970 (2021)). The Court is not aware of

any clearly established federal law with a holding similar to that of In re Palmer. See Navarro v.

Gipson, No. EDCV 21-1529-SB (PLA), 2021 WL 4263171, at *2 (C.D. Cal. Sept. 20, 2021) (noting

that no Supreme Court holding supports an Eighth Amendment challenge to continued

incarceration following a parole denial on a valid indeterminate life sentence). Accordingly, because

Petitioner is serving an indeterminate life sentence and has no federal constitutional right to release

before completion of that sentence, Petitioner’s continued incarceration following his parole denial

does not implicate the Eighth Amendment.

3. Sixth Amendment

Petitioner argues that he was denied “the [c]onstitutional [r]ight to confront and contest

numerous uncharged murder [allegations] prior to his 10-day Parole Hearing.” Dkt. 1 at 5.

However, unlike trial and sentencing proceedings, parole hearings are not part of a criminal

prosecution. Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987) (citing Wolff v.

McDonnell, 418 U.S. 539, 556 (1974)). Therefore, the Constitution does not mandate “the full

panoply of rights due a defendant” in parole proceedings, “even when a protected liberty interest

exists.” Id.; Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987) (same). As

explained above, Petitioner’s minimal federal rights for his parole hearing only involved (1) the

opportunity to be heard, and (2) a statement of the reasons why parole was denied. See Cooke,

562 U.S. at 220. Accordingly, Petitioner’s Sixth Amendment claim must fail.

C. EXHAUSTION REQUIREMENT

To the extent that Petitioner’s allegations do present cognizable federal claims, it is not

evident that he has presented any such claims to the California Supreme Court. Here, Petitioner

checked a box stating that he brought his claims to the California Supreme Court, but he did not

provide a citation to the underlying denial. Dkt. 1 at 6–7. Although Petitioner has brought several

habeas petitions in state court, it is unclear whether any of these prior petitions included his instant

claims challenging the Board’s 2020 parole denial.

A petition that includes unexhausted claims is subject to dismissal. See Rose v. Lundy,

455 U.S. 509, 522 (1982). Consequently, it appears that Petitioner has failed to exhaust his state

remedies and the instant Petition is subject to dismissal. See 28 U.S.C. § 2254(b); O’Sullivan v.

Boerckel, 526 U.S. 838, 842 (1999); see Davis v. Silva, 511 F.3d 1005, 1008–09 (9th Cir. 2008)

(finding the exhaustion requirement is satisfied when the substance of a petitioner’s federal claim has

been fairly presented to the state’s highest court).

CV-90 (03/15) Civil Minutes – General Page 5 of 7

Case 2:22-cv-04117-FLA-MAR Document 4 Filed 06/28/22 Page 6 of 8 Page ID #:129

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-04117-FLA (MAR) Date: June 28, 2022

Title: Jose Morales v. Robert Burton

D. SECOND OR SUCCESSIVE PETITION

Lastly, Petitioner appears to challenge the sufficiency of the evidence by arguing that the

state used falsified fingerprint evidence to convict Petitioner in 1982. Dkt. 1 at 5, 8. The court is

without jurisdiction to consider any such claims because they are successive, and the Ninth Circuit

has not authorized Petitioner to file a second or successive petition. See Morales,

2021 WL 2593644, at *2 (dismissing Petitioner’s claims challenging his 1982 conviction as being

second or successive).

District courts do not have jurisdiction to consider a second or successive habeas corpus

petition unless the petitioner first obtains permission from the circuit court of appeals to file one.

See Felker v. Turpin, 518 U.S. 651, 657 (1996) (§ 2244(b) creates a “gatekeeping” mechanism for

“second or successive habeas application in the district court”). Any claim challenging the validity

of Petitioner’s 1982 conviction or sentence is second or successive and not properly before the

Court.8

As a general rule, habeas petitioners may file only one habeas petition challenging their

conviction or sentence. See § 2244(b)(1). Hence, if a prior petition raised a claim that was

adjudicated on the merits, a petitioner must “move in the appropriate court of appeals for an order

authorizing the district court to consider the [second or successive petition].” § 2244(b)(3)(A);

McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). Absent proper authorization from the court

of appeals, district courts lack jurisdiction to consider second or successive petitions and must

dismiss such petitions without prejudice to refiling if the petitioner obtains the necessary

authorization. Burton v. Stewart, 549 U.S. 147, 152–53 (2007); Cooper v. Calderon, 274 F.3d 1270,

1274 (9th Cir. 2001) (“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.”) (citation omitted); § 2244(b)(2).

IV.

ORDER

Thus, the Court ORDERS Petitioner to respond no later than July 25, 2022, by electing

one of the following options:

1. File a supplemental statement addressing why the Petition should not be

dismissed for the above-discussed reasons; or

2. Voluntarily dismiss this action without prejudice. Petitioner may request

a voluntary dismissal of this action pursuant to Federal Rule of Civil

8 A search of the Court’s PACER system reflects that the Ninth Circuit has not authorized Petitioner to file a second or

successive petition.

CV-90 (03/15) Civil Minutes – General Page 6 of 7

Case 2:22-cv-04117-FLA-MAR Document 4 Filed 06/28/22 Page 7 of 8 Page ID #:130

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-04117-FLA (MAR) Date: June 28, 2022

Title: Jose Morales v. Robert Burton

Procedure 41(a). The Clerk of Court has attached A Notice of

Dismissal form. However, the Court warns any dismissed claims may

be later subject to the statute of limitations, because “[a] 1-year period of

limitation shall apply to an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court.” 28 U.S.C.

§ 2244(d)(1).

If Petitioner fails to respond by July 25, 2022, the Court will recommend that this action

be dismissed with prejudice for his failure to comply with the Court’s orders and failure to

prosecute. See Fed. R. Civ. P. 41(b).

IT IS SO ORDERED.

:

Initials of Preparer eb

CV-90 (03/15) Civil Minutes – General Page 7 of 7

Case 2:22-cv-04117-FLA-MAR Document □ Filed 06/28/22 Page 8o0f8 Page ID #:131

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

Plaintiff(s),

Vv.

NOTICE OF DISMISSAL PURSUANT

TO FEDERAL RULES OF CIVIL

Defendant(s). PROCEDURE 41(a) or (c)

PLEASE TAKE NOTICE: (Check one)

L] This action is dismissed by the Plaintiff(s) in its entirety.

L] The Counterclaim brought by Claimant(s) is

dismissed by Claimant(s) in its entirety.

L] The Cross-Claim brought by Claimants(s) is

dismissed by the Claimant(s) in its entirety.

L] The Third-party Claim brought by Claimant(s) is

dismissed by the Claimant(s) in its entirety.

ONLY Defendant(s)

is/are dismissed from (check one) Complaint, LJ Counterclaim, LJ Cross-claim, ) Third-Party Claim

brought by .

The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).

Date Signature of Attorney/Party

NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for

summary judgment, whichever first occurs.

F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive

pleading or prior to the beginning of trial.

CV-09 (03/10) NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE or (c)