(HC) Cedillo v. Yates, No. 1:2009cv01261 - Document 28 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that The Petition for Writ of Habeas Corpus be DISMISSED without leave to amend because Petitioner has failed to state a claim that is cognizable; DECLINE to issue Certificate of Appealability; Clerk be DIRECTED to Close the action; re 1 Petition for Writ of Habeas Corpus filed by Robert Cedillo ; referred to Judge Wanger,signed by Magistrate Judge Sandra M. Snyder on 03/03/2011. Objections to F&R due by 4/7/2011 (Martin, S)
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(HC) Cedillo v. Yates Doc. 28 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 6 ROBERT CEDILLO, 7 Petitioner, 8 v. 9 WARDEN JAMES A. YATES, 10 Respondent. 11 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01261-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS 12 13 Petitioner is a state prisoner proceeding pro se and in 14 forma pauperis with a petition for writ of habeas corpus pursuant 15 to 28 U.S.C. § 2254. 16 Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 17 304. 18 on July 21, 2009. 19 October 29, 2009, and Petitioner filed a traverse on April 26, 20 2010. The matter was referred to the Magistrate Pending before the Court is the petition, which was filed Respondent filed an answer to the petition on 21 I. 22 Rule 4 of the Rules Governing § 2254 Cases in the United 23 States District Courts (Habeas Rules) requires that the Court 24 summarily dismiss a petition "[i]f it plainly appears from the 25 petition and any attached exhibits that the petitioner is not 26 entitled to relief in the district court....” 27 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 28 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Consideration of Dismissal of the Petition Habeas Rule 4; Habeas Rule 1 Dockets.Justia.com 1 2(c) requires that a petition 1) specify all grounds of relief 2 available to the Petitioner; 2) state the facts supporting each 3 ground; and 3) state the relief requested. 4 not sufficient; rather, the petition must state facts that point 5 to a real possibility of constitutional error. 6 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 7 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). 8 Allegations in a petition that are vague, conclusory, or palpably 9 incredible are subject to summary dismissal. 10 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 11 Notice pleading is Rule 4, Advisory Hendricks v. Further, the Court may dismiss a petition for writ of habeas 12 corpus either on its own motion under Habeas Rule 4, pursuant to 13 the respondent's motion to dismiss, or after an answer to the 14 petition has been filed. 15 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 16 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 17 II. 18 Petitioner alleges that he is an inmate of Pleasant Valley 19 State Prison who is serving a sentence of sixteen years to life 20 imposed in the Fresno County Superior Court in 1989 upon 21 Petitioner’s conviction of second degree murder and voluntary 22 manslaughter in violation of Cal. Pen. Code §§ 187 and 192(A). 23 (Pet. 1, 8.) 24 Board of Parole Hearings (BPH) made after a hearing held on June 25 5, 2007, finding Petitioner unsuitable for parole. 26 1, 20.) 27 28 Background Petitioner challenges the decision of California’s (Pet., doc. It appears from Petitioner’s allegations and the transcript of the parole hearing submitted by Respondent that Petitioner 2 1 attended the parole hearing before the board on June 5, 2007 2 (Ans. Ex. A [doc. 13-1], 59-62); spoke to the board about various 3 suitability factors (id. at 63-1050); was represented by counsel, 4 who argued in his behalf (id. at 109-14); and made his own 5 statement to the BPH concerning his suitability for parole (id. 6 at 114-16). 7 The transcript of the hearing also reflects that Petitioner 8 was present at the conclusion of the hearing when the BPH 9 explained why it decided that Petitioner was not suitable for 10 parole. 11 and Petitioner’s need to be discipline-free, get through AA/NA to 12 establish mechanisms for relapse prevention, engage in further 13 self-help concerning anger management, pick up marketable skills, 14 and engage in other educational processes. 15 1], 117-27.) 16 The board relied on the nature of the commitment offense (Ans. Ex. A [doc. 13- Petitioner contends that the BPH denied Petitioner’s right 17 to due process of law because there was no evidence to support 18 the decision, and the BPH gave inappropriate weight to the nature 19 of the commitment offense. 20 contends that the BPH failed to consider many of the applicable 21 parole suitability factors and denied Petitioner a fully 22 individualized consideration of the evidence. 23 Petitioner thus asks this Court to review the BPH’s weighing of 24 the evidence and to determine whether there was some evidence to 25 support the conclusion that Petitioner was unsuitable for parole 26 because he posed a current threat of danger to the public if 27 released. 28 that because there was an absence of some evidence to support the (Pet. 30-50.) (Pet. 29, 55.) Petitioner also (Pet. 50-55.) Petitioner necessarily also contends 3 1 BPH’s decision, the state courts’ decisions upholding the denial 2 of parole were unreasonable applications of clearly established 3 federal law. 4 III. 5 Because the petition was filed after April 24, 1996, the Failure to State a Cognizable Claim 6 effective date of the Antiterrorism and Effective Death Penalty 7 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 8 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 9 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 10 A district court may entertain a petition for a writ of 11 habeas corpus by a person in custody pursuant to the judgment of 12 a state court only on the ground that the custody is in violation 13 of the Constitution, laws, or treaties of the United States. 28 14 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 15 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 16 16 (2010) (per curiam). 17 Lindh The Supreme Court has characterized as reasonable the 18 decision of the Court of Appeals for the Ninth Circuit that 19 California law creates a liberty interest in parole protected by 20 the Fourteenth Amendment Due Process Clause, which in turn 21 requires fair procedures with respect to the liberty interest. 22 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 23 However, the procedures required for a parole determination 24 are the minimal requirements set forth in Greenholtz v. Inmates 25 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 26 27 28 1 In Greenholtz, the Court held that a formal hearing is not required with respect to a decision concerning granting or denying discretionary parole; it is sufficient to permit the inmate to have an opportunity to be heard and to be given a statement of reasons for the decision made. Id. at 4 1 Swarthout v. Cooke, 131 S.Ct. 859, 862. 2 rejected inmates’ claims that they were denied a liberty interest 3 because there was an absence of “some evidence” to support the 4 decision to deny parole. 5 6 7 8 9 10 11 12 In Swarthout, the Court The Court stated: There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication–and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California’s received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.) 13 Swarthout, 131 S.Ct. 859, 862. 14 petitioners had received the process that was due as follows: 15 16 The Court concluded that the They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.... 17 18 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 19 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 20 noted that California’s “some evidence” rule is not a substantive 21 22 23 24 25 26 27 28 16. The decision maker is not required to state the evidence relied upon in coming to the decision. Id. at 15-16. The Court reasoned that because there is no constitutional or inherent right of a convicted person to be released conditionally before expiration of a valid sentence, the liberty interest in discretionary parole is only conditional and thus differs from the liberty interest of a parolee. Id. at 9. Further, the discretionary decision to release one on parole does not involve restrospective factual determinations, as in disciplinary proceedings in prison; instead, it is generally more discretionary and predictive, and thus procedures designed to elicit specific facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due process was satisfied where the inmate received a statement of reasons for the decision and had an effective opportunity to insure that the records being considered were his records, and to present any special considerations demonstrating why he was an appropriate candidate for parole. Id. at 15. 5 1 federal requirement, and correct application of California’s 2 “some evidence” standard is not required by the federal Due 3 Process Clause. 4 Id. at 862-63. Here, Petitioner asks this Court to engage in the very type 5 of analysis foreclosed by Swarthout. 6 facts that point to a real possibility of constitutional error or 7 that otherwise would entitle Petitioner to habeas relief because 8 California’s “some evidence” requirement is not a substantive 9 federal requirement. Petitioner does not state Review of the record for “some evidence” to 10 support the denial of parole is not within the scope of this 11 Court’s habeas review under 28 U.S.C. § 2254. 12 Likewise, Petitioner’s claim that he did not receive a 13 sufficiently individualized consideration of the factors 14 appropriate under California law is not cognizable. 15 due process to which Petitioner is entitled does not include any 16 particular degree of individualized consideration. 17 The minimal Petitioner cites state law concerning the appropriate weight 18 to be given to evidence. 19 or claims rest on state law, they are not cognizable on federal 20 habeas corpus. 21 state issue that does not rise to the level of a federal 22 constitutional violation. 23 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 24 (1991). 25 cognizable in federal habeas corpus. 26 616, 623 (9th Cir. 2002). To the extent that Petitioner’s claim Federal habeas relief is not available to retry a Wilson v. Corcoran, 562 U.S. — , 131 Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d 27 A petition for habeas corpus should not be dismissed without 28 leave to amend unless it appears that no tenable claim for relief 6 1 can be pleaded were such leave granted. 2 F.2d 13, 14 (9th Cir. 1971). 3 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition and 4 the related documentation that Petitioner attended the parole 5 suitability hearing, was represented by counsel, made statements 6 to the BPH, and received a statement of reasons for the decision 7 of the BPH. 8 process that was due, Petitioner cannot state a tenable due 9 process claim. 10 11 Because it appears that Petitioner received all Accordingly, it will be recommended that the petition be dismissed without leave to amend. 12 IV. 13 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 14 appealability, an appeal may not be taken to the Court of Appeals 15 from the final order in a habeas proceeding in which the 16 detention complained of arises out of process issued by a state 17 court. 18 U.S. 322, 336 (2003). 19 only if the applicant makes a substantial showing of the denial 20 of a constitutional right. 21 petitioner must show that reasonable jurists could debate whether 22 the petition should have been resolved in a different manner or 23 that the issues presented were adequate to deserve encouragement 24 to proceed further. 25 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 26 certificate should issue if the Petitioner shows that jurists of 27 reason would find it debatable whether the petition states a 28 valid claim of the denial of a constitutional right and that 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 7 A 1 jurists of reason would find it debatable whether the district 2 court was correct in any procedural ruling. 3 529 U.S. 473, 483-84 (2000). 4 Slack v. McDaniel, In determining this issue, a court conducts an overview of 5 the claims in the habeas petition, generally assesses their 6 merits, and determines whether the resolution was debatable among 7 jurists of reason or wrong. 8 applicant to show more than an absence of frivolity or the 9 existence of mere good faith; however, it is not necessary for an Id. It is necessary for an 10 applicant to show that the appeal will succeed. 11 Cockrell, 537 U.S. at 338. Miller-El v. 12 A district court must issue or deny a certificate of 13 appealability when it enters a final order adverse to the 14 applicant. 15 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 16 debate whether the petition should have been resolved in a 17 different manner. 18 of the denial of a constitutional right. 19 recommended that the Court decline to issue a certificate of 20 appealability. Petitioner has not made a substantial showing 21 V. 22 Accordingly, it is RECOMMENDED that: 23 1) Accordingly, it will be Recommendations The petition for writ of habeas corpus be DISMISSED 24 without leave to amend because Petitioner has failed to state a 25 claim that is cognizable in a proceeding pursuant to 28 U.S.C. § 26 2254; and 27 28 2) The Court DECLINE to issue a certificate of appealability; and 8 1 2 3) The Clerk be DIRECTED to close the action because dismissal would terminate the proceeding in its entirety. 3 These findings and recommendations are submitted to the 4 United States District Court Judge assigned to the case, pursuant 5 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 6 the Local Rules of Practice for the United States District Court, 7 Eastern District of California. 8 being served with a copy, any party may file written objections 9 with the Court and serve a copy on all parties. Within thirty (30) days after Such a document 10 should be captioned “Objections to Magistrate Judge’s Findings 11 and Recommendations.” 12 and filed within fourteen (14) days (plus three (3) days if 13 served by mail) after service of the objections. 14 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 15 636 (b)(1)(C). 16 objections within the specified time may waive the right to 17 appeal the District Court’s order. 18 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 19 20 IT IS SO ORDERED. 21 Dated: icido3 March 3, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 9
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