Richard Alley v. Tom Carey

FILED
NOT FOR PUBLICATION NOV 05 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RICHARD L. ALLEY, No. 09-15328

Petitioner-Appellant, D.C. No. 05-cv-01921-LKK-CMK

v.
MEMORANDUM *
TOM L. CAREY,
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding

Submitted November 1, 2010 **
San Francisco, California

Before: RYMER and ALARCON, Circuit Judges, and TRAGER, *** District

Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
Petitioner-Appellant Richard Alley appeals from the district court's

judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We presume the

parties' familiarity with the facts and do not recount them here except as necessary

to explain our decision. Because Alley's habeas petition "arises out of process

issued by a State court," 28 U.S.C. § 2253(c)(1)(A), we do not have jurisdiction

over this appeal until Alley obtains a certificate of appealability ("COA"),

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Alley does not request a

COA, and his claims do not warrant the issuance of one sua sponte. We, therefore,

dismiss the appeal for lack of jurisdiction.

When Alley filed his appeal, he was not required to obtain a COA because

his habeas challenged a state administrative decision as opposed to a judicial

decision. White v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004), overruled by

Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc). Since that

time, we have held that a prisoner seeking review on habeas of an administrative

decision must be issued a COA before this Court has jurisdiction over the appeal.

Hayward, 603 F.3d at 554. Although we may issue a COA sua sponte, id.,

petitioners must still meet the standard set forth in 28 U.S.C. § 2253, which

provides: "A [COA] may issue . . . only if the applicant has made a substantial

showing of the denial of a constitutional right." § 2253(c)(2). A petitioner makes

2
this showing by demonstrating "that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong." Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

A "general assessment," Miller-El, 537 U.S. at 336, of Alley's claims

demonstrates that they are meritless. Alley's argument that he has a liberty interest

in immediate release because California abrogated the authority of the Board of

Prison Terms ("Board") to determine his parole eligibility is patently incorrect.

See Cal. Penal Code § 3040. Although California replaced its indeterminate

sentencing regime with a determinate one, some sentences, including those for

Alley's conviction, remained indeterminate and, thus, subject to the Board's

jurisdiction. In re Dannenberg, 104 P.3d 783, 790-91 (Cal. 2005). Therefore,

Alley does not have a liberty interest, protected by federal law, in immediate

release.

Alley's related assertion — that the California Department of Corrections

and Rehabilitation ("Department") has wrongly denied him good time credit since

1989 — does not implicate a right protected by the Due Process Clause. Assuming

Alley's argument is grounded in fact, the credit the Department denied him would

only have made his minimum eligible parole date earlier. See Cal. Code Regs. tit.

15, § 2400 ("The department will determine the minimum eligible parole date. The

3
length of time a prisoner must serve prior to actual release on parole is determined

by the board."). But Alley has already received at least one parole hearing, after

which the Board found him unsuitable for parole,1 and, as we have indicated, the

decision whether to release him on parole is properly within the Board's purview.

Therefore, to the extent Alley was denied credit, his actual sentence was

unaffected. See Cal. Code Regs. tit. 15, § 2400 ("The department's decisions

[regarding credit] do not affect the Board's decision concerning postconviction

credit pursuant to these rules.").

Alley's equal protection claim is, likewise, meritless. Alley, like all other

prisoners serving indeterminate sentences for first-degree murder, was sentenced

outside California's determinate sentencing regime and is not comparable to

prisoners serving determinate sentences. Dannenberg, 104 P.3d at 790-91; cf.

Allen v. Woodford, 395 F.3d 979, 1018-19 (9th Cir. 2005) ("[W]e agree with the

California Supreme Court that defendants sentenced under the Determinate

Sentencing Law are not similarly situated to defendants sentenced in the capital

system."). Finally, Alley never demonstrates what effect a 1979 memorandum

1
In re Monigold, in which the California Court of Appeals held that the loss
of an earlier minimum eligible parole date equitably estopped the Department from
denying worktime credit, is distinguishable because the petitioner in that case had
not yet received a parole hearing. 253 Cal. Rptr. 120, 121, 123 (Cal. Ct. App.
1988).

4
authored by the San Diego Deputy Attorney General had on the administration of

his sentence. To the extent that this argument is really a recapitulation of his other

two claims, it does not implicate a federal right and rests on incorrect

interpretations of state law. Accordingly, because Alley cannot make the proper

showing for a COA, see Slack, 529 U.S. at 484, we do not have jurisdiction over

his appeal.

DISMISSED.