(HC) Whittenburg v. Clark, No. 1:2010cv00352 - Document 12 (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 cognizable; Court DECLINE to Issue a Certificate of Appealability; Clerk DIRECTED to Close the Action because this order terminates the proceeding in its entirety; re 1 Petition for Writ of Habeas Corpus filed by Randy Maran Whittenburg ; referred to Judge Wanger, signed by Magistrate Judge Sandra M. Snyder on 03/3/2011. Objections to F&R due by 4/7/2011 (Martin, S)
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(HC) Whittenburg v. Clark Doc. 12 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 RANDY MARAN WHITTENBURG, 11 Petitioner, 12 v. 13 KEN CLARK, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00352-OWW-SMS-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS 16 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 The matter has been referred to the Magistrate Judge pursuant to 20 28 U.S.C.§ 636(b)(1) and Local Rules 72-302 and 72-304. 21 before the Court is the petition, which was filed on March 1, 22 2010. 23 filed a traverse on June 23, 2010. Pending Respondent filed an answer on May 24, 2010, and Petitioner 24 I. 25 Rule 4 of the Rules Governing § 2254 Cases in the United Consideration of Dismissal of the Petition 26 States District Courts (Habeas Rules) requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. 28 The Court must summarily dismiss a petition "[i]f it plainly 1 Dockets.Justia.com 1 appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court....” 3 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 4 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 5 1990). 6 grounds of relief available to the Petitioner; 2) state the facts 7 supporting each ground; and 3) state the relief requested. 8 Notice pleading is not sufficient; rather, the petition must 9 state facts that point to a real possibility of constitutional Habeas Rule 2(c) requires that a petition 1) specify all 10 error. 11 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 12 Allison, 431 U.S. 63, 75 n.7 (1977)). 13 that are vague, conclusory, or palpably incredible are subject to 14 summary dismissal. 15 Cir. 1990). 16 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 17 corpus either on its own motion under Habeas Rule 4, pursuant to 18 the respondent's motion to dismiss, or after an answer to the 19 petition has been filed. 20 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 21 (9th Cir. 2001). 22 Advisory Committee Notes to Habeas Rule Here, after the answer and traverse were filed, the United 23 States Supreme Court decided Swarthout v. Cooke, 562 U.S. –, 131 24 S.Ct. 859, 861-62 (2011). 25 the instant case, and because no motion to dismiss the petition 26 has been filed, the Court proceeds to consider whether the 27 petition states a cognizable claim for relief. 28 /// Because Swarthout appears to govern 2 1 II. 2 Petitioner alleges that he is an inmate of the California Background 3 Substance Abuse Treatment Facility and State Prison at Corcoran, 4 California, who is serving a sentence of twenty-six (26) years to 5 life imposed in the Los Angeles County Superior Court upon 6 Petitioner’s 1989 conviction of first degree murder with a 7 firearm. 8 California Board of Parole Hearings (BPH) finding Petitioner 9 unsuitable for parole and also argues that the state courts’ (Pet. 1.) Petitioner challenges a decision of the 10 decisions upholding the board’s denial of parole were objectively 11 unreasonable. 12 question followed a hearing held before the BPH on September 23, 13 2008. 14 (Pet. 4-8.) It appears that the decision in (Ans., Ex. A [doc. 10-1], 2.) It appears from the transcript of the hearing submitted by 15 Respondent with the answer that Petitioner attended the parole 16 hearing before the Board on September 23, 2008. 17 [doc. 10-1], 67, 69; Ex. 2 [doc. 10-3], 74.) 18 represented by counsel, who spoke on behalf of Petitioner. 19 (Ans., Ex. 2 [doc. 10-3], 74, 81-82; [doc. 10-4], 35-39.) 20 Petitioner spoke to the Board about various suitability factors 21 and personally made a statement. (Ans., Ex. 2 [doc. 10-3], 81- 22 114; [doc. 10-4], 1-25, 29, 39.) 23 statement of reasons for the BPH’s grant of parole. 24 [doc. 10-4], 40-55.) 25 (Ans., Ex. 1 Petitioner was Petitioner was given a (Ans., Ex. 2 Petitioner asks this Court to review whether there was some 26 evidence to support the conclusion that Petitioner was unsuitable 27 for parole because he posed a current threat of danger to the 28 public if released. (Pet. 4-5.) Petitioner raises the following 3 1 claims: 2 exceeded the requirements of the parole statutes and regulations 3 and the recommendations of the previous parole panel, and thus 4 Petitioner should have been found suitable; 2) Petitioner’s right 5 to due process of law was violated because the BPH failed to give 6 Petitioner individualized consideration of his own behavior; 3) 7 Petitioner’s right to due process of law was violated by the 8 failure of the BPH to hold annual parole hearings as the state’s 9 high court determined were required pursuant to its 1) the evidence of Petitioner’s behavior and programming 10 interpretation of state statutes; and 4) the decision that 11 Petitioner was unsuitable for parole violated Petitioner’s right 12 to due process of law because none of the evidence cited by the 13 BPH or state courts supported a finding of current, unreasonable 14 danger to the public. (Pet. 4-5.) 15 III. 16 Because the petition was filed after April 24, 1996, the Failure to Allege a Claim Cognizable on Habeas Corpus 17 effective date of the Antiterrorism and Effective Death Penalty 18 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 19 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 20 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 21 A district court may entertain a petition for a writ of 22 habeas corpus by a person in custody pursuant to the judgment of 23 a state court only on the ground that the custody is in violation 24 of the Constitution, laws, or treaties of the United States. 28 25 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 26 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 27 16 (2010) (per curiam). 28 The Supreme Court has characterized as reasonable the 4 Lindh 1 decision of the Court of Appeals for the Ninth Circuit that 2 California law creates a liberty interest in parole protected by 3 the Fourteenth Amendment Due Process Clause, which in turn 4 requires fair procedures with respect to the liberty interest. 5 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 6 However, the procedures required for a parole determination 7 are the minimal requirements set forth in Greenholtz v. Inmates 8 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 9 Swarthout v. Cooke, 131 S.Ct. 859, 862. In Swarthout, the Court 10 rejected inmates’ claims that they were denied a liberty interest 11 because there was an absence of “some evidence” to support the 12 decision to deny parole. 13 14 15 16 17 18 19 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 20 1 21 22 23 24 25 26 27 28 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 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 a statement of the reasons why parole was denied. (Citation omitted.) 2 Swarthout, 131 S.Ct. 859, 862. The Court concluded that the 3 petitioners had received the process that was due as follows: 4 5 6 7 8 9 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.... That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 10 noted that California’s “some evidence” rule is not a substantive 11 federal requirement, and correct application of California’s 12 “some evidence” standard is not required by the federal Due 13 Process Clause. 14 Id. at 862-63. Here, in claims 1 and 4, Petitioner challenges the 15 sufficiency and the weight of the evidence as determined by the 16 BPH and the state courts. 17 in the very type of analysis foreclosed by Swarthout. 18 does not state facts that point to a real possibility of 19 constitutional error or that otherwise would entitle Petitioner 20 to habeas relief because California’s “some evidence” requirement 21 is not a substantive federal requirement. 22 for “some evidence” to support the denial of parole is not within 23 the scope of this Court’s habeas review under 28 U.S.C. § 2254. 24 Petitioner asks this Court to engage Petitioner Review of the record Petitioner’s second claim that he did not receive a 25 sufficiently individualized consideration of the evidence 26 concerning his behavior is likewise not cognizable. 27 due process to which Petitioner is entitled does not include any 28 particular degree of individualized consideration. 6 The minimal 1 Petitioner’s third claim concerning a violation of due 2 process based on the BPH’s failure to hold annual parole hearings 3 as required by state law is not cognizable in a proceeding 4 pursuant to 28 U.S.C. § 2254. 5 on the state court’s interpretation of state law. 6 the extent that Petitioner’s claim rests on state law, it is not 7 cognizable on federal habeas corpus. 8 not available to retry a state issue that does not rise to the 9 level of a federal constitutional violation. Petitioner’s claim appears to rest (Pet. 5.) To Federal habeas relief is Wilson v. Corcoran, 10 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 11 U.S. 62, 67-68 (1991). 12 state law are not cognizable in federal habeas corpus. 13 Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). Alleged errors in the application of Souch v. 14 A petition for habeas corpus should not be dismissed without 15 leave to amend unless it appears that no tenable claim for relief 16 can be pleaded were such leave granted. 17 F.2d 13, 14 (9th Cir. 1971). 18 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition that 19 Petitioner attended the parole suitability hearing, made 20 statements to the BPH, was represented by counsel, and received a 21 statement of reasons for the decisions of the BPH and the 22 governor. 23 had an opportunity to be heard and a statement of reasons for the 24 decisions in question. 25 Petitioner could state a tenable due process claim. 26 Thus, Petitioner’s own allegations establish that he It therefore does not appear that Accordingly, it will be recommended that the petition be 27 dismissed without leave to amend. 28 /// 7 1 IV. 2 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 3 appealability, an appeal may not be taken to the Court of Appeals 4 from the final order in a habeas proceeding in which the 5 detention complained of arises out of process issued by a state 6 court. 7 U.S. 322, 336 (2003). 8 only if the applicant makes a substantial showing of the denial 9 of a constitutional right. 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 10 petitioner must show that reasonable jurists could debate whether 11 the petition should have been resolved in a different manner or 12 that the issues presented were adequate to deserve encouragement 13 to proceed further. 14 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 15 certificate should issue if the Petitioner shows that jurists of 16 reason would find it debatable whether the petition states a 17 valid claim of the denial of a constitutional right and that 18 jurists of reason would find it debatable whether the district 19 court was correct in any procedural ruling. 20 529 U.S. 473, 483-84 (2000). 21 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 22 the claims in the habeas petition, generally assesses their 23 merits, and determines whether the resolution was debatable among 24 jurists of reason or wrong. 25 applicant to show more than an absence of frivolity or the 26 existence of mere good faith; however, it is not necessary for an 27 applicant to show that the appeal will succeed. 28 Cockrell, 537 U.S. at 338. Id. It is necessary for an 8 Miller-El v. 1 A district court must issue or deny a certificate of 2 appealability when it enters a final order adverse to the 3 applicant. 4 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 5 debate whether the petition should have been resolved in a 6 different manner. 7 of the denial of a constitutional right. 8 recommended that the Court decline to issue a certificate of 9 appealability. Petitioner has not made a substantial showing 10 V. 11 Accordingly, it is RECOMMENDED that: 12 1) Accordingly, it will be Recommendation The petition for writ of habeas corpus be DISMISSED 13 without leave to amend because Petitioner has failed to state a 14 claim cognizable pursuant to 28 U.S.C. § 2254; and 15 16 17 18 2) The Court DECLINE to issue a certificate of appealability; and 4) The Clerk be DIRECTED to close the action because this order terminates the proceeding in its entirety. 19 These findings and recommendations are submitted to the 20 United States District Court Judge assigned to the case, pursuant 21 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 22 the Local Rules of Practice for the United States District Court, 23 Eastern District of California. 24 being served with a copy, any party may file written objections 25 with the Court and serve a copy on all parties. 26 should be captioned “Objections to Magistrate Judge’s Findings 27 and Recommendations.” 28 and filed within fourteen (14) days (plus three (3) days if Within thirty (30) days after Such a document Replies to the objections shall be served 9 1 served by mail) after service of the objections. 2 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 3 636 (b)(1)(C). 4 objections within the specified time may waive the right to 5 appeal the District Court’s order. 6 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 7 8 IT IS SO ORDERED. 9 Dated: icido3 March 3, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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