-SMS (HC) Richard Allen Smith v. Ken Clark, No. 1:2010cv01111 - Document 14 (E.D. Cal. 2011)
Court Description: ORDER GRANTING Respondent's 13 Request to Substitute Kathleen Allison as Respondent and DIRECTING the Clerk to Change the Name of Respondent to Kathleen Allison; FINDINGS and RECOMMENDATIONS re 13 MOTION to DISMISS the Petition; FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition Without Leave to Amend, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case signed by Magistrate Judge Sandra M. Snyder on 5/26/2011. Referred to Judge Oliver W. Wanger. Objections to F&R due by 6/29/2011. (Sant Agata, S)
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-SMS (HC) Richard Allen Smith v. Ken Clark Doc. 14 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 RICHARD ALLEN SMITH, 11 Petitioner, 12 v. 13 KATHLEEN ALLISON, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01111–OWW-SMS-HC ORDER GRANTING RESPONDENT’S REQUEST TO SUBSTITUTE KATHLEEN ALLISON AS RESPONDENT AND DIRECTING THE CLERK TO CHANGE THE NAME OF RESPONDENT TO KATHLEEN ALLISON (DOC. 13) FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 13) 16 FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE (DOCS. 1, 13) 17 18 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. The matter has been referred to the 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 24 Rules 302 and 304. Pending before the Court is Respondent’s 25 motion to dismiss the petition filed on March 18, 2011, and 26 served on Petitioner on the same date. No opposition to the 27 motion has been filed. 28 1 Dockets.Justia.com 1 I. 2 Title 28 U.S.C. § 2242 provides that a petition for writ of Order to Substitute Kathleen Allison as Respondent 3 habeas corpus shall allege the name of the person who has custody 4 over the applicant. 5 2254 Cases in the District Courts (Habeas Rules) provides that if 6 the petitioner is currently in custody under a state-court 7 judgment, the petition must name as respondent the state officer 8 who has custody. 9 Rule 2(a) of the Rules Governing Section The respondent must have the power or authority to provide 10 the relief to which a petitioner is entitled. 11 392 F.3d 350, 355 n. 3 (9th Cir. 2004). 12 proper respondent destroys personal jurisdiction. 13 California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 14 However, personal jurisdiction, including the requirement of 15 naming the technically correct custodian under § 2242 and the 16 Habeas Rules, may be forfeited waived on behalf of the immediate 17 custodian by the relevant government entity, such as the state in 18 a § 2254 proceeding. 19 n. 4 (9th Cir. 2004) (where the state conceded it had waived lack 20 of jurisdiction over a petitioner’s immediate custodian and 21 submitted itself in his stead to the jurisdiction of the federal 22 courts). 23 the resources of the court and the parties by recognizing a 24 waiver instead of requiring formal amendment of the petition by 25 the Petitioner. Smith v. Idaho, A failure to name the Stanley v. Smith v. Idaho, 392 F.3d 350, 355-56, 356 A court has the discretion to avoid delay and waste of Id. at 356 n. 6. 26 Here, Petitioner, who is incarcerated at the California 27 Substance Abuse Treatment Facility and State Prison (CSATFSP) at 28 Corcoran, California, initially named Ken Clark, Warden, as 2 1 Respondent. (Pet. 1.) 2 Respondent states that the proper respondent is Kathleen Allison, 3 the current acting warden at CSATFSP, where Petitioner is housed. 4 (Mot. 1 n.1.) 5 is filed on behalf of the Respondent. 6 the Court substitute Kathleen Allison as Respondent pursuant to 7 Rule 25(d) of the Federal Rules of Civil Procedure. 8 n.1.) 9 However, in the motion to dismiss, Further, it is stated that the motion to dismiss Respondent requests that (Mot. 1 Rule 25(d) provides that a court may at any time order 10 substitution of a public officer who is a party in an official 11 capacity whose predecessor dies, resigns, or otherwise ceases to 12 hold office. 13 The Court concludes that Kathleen Allison, Acting Warden at 14 CSATFSP, is an appropriate respondent in this action, and that 15 pursuant to Fed. R. Civ. P. 25(d), she should be substituted in 16 place of Ken Clark. 17 18 Accordingly, the Clerk is ORDERED to substitute Kathleen Allison as Respondent. 19 II. 20 Because the petition was filed after April 24, 1996, the Proceeding by Way of a Motion to Dismiss 21 effective date of the Antiterrorism and Effective Death Penalty 22 Act of 1996 (AEDPA), the AEDPA applies to the petition. 23 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 24 1484, 1499 (9th Cir. 1997). Lindh v. 25 A district court may entertain a petition for a writ of 26 habeas corpus by a person in custody pursuant to the judgment of 27 a state court only on the ground that the custody is in violation 28 of the Constitution, laws, or treaties of the United States. 3 28 1 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 2 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 3 16 (2010) (per curiam). 4 Rule 4 of the Rules Governing Section 2254 Cases (Habeas 5 Rules) allows a district court to dismiss a petition if it 6 “plainly appears from the face of the petition and any exhibits 7 annexed to it that the petitioner is not entitled to relief in 8 the district court....” 9 The Ninth Circuit has allowed respondents to file motions to 10 dismiss pursuant to Rule 4 instead of answers if the motion to 11 dismiss attacks the pleadings by claiming that the petitioner has 12 failed to exhaust state remedies or has violated the state’s 13 procedural rules. 14 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 15 a petition for failure to exhaust state remedies); White v. 16 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 17 review a motion to dismiss for state procedural default); Hillery 18 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 19 Thus, a respondent may file a motion to dismiss after the Court 20 orders the respondent to respond, and the Court should use Rule 4 21 standards to review a motion to dismiss filed before a formal 22 answer. 23 See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, upon being directed to respond to the petition 24 by way of answer or motion, Respondent filed the motion to 25 dismiss. 26 found in the pleadings and in copies of the official records of 27 state parole and judicial proceedings which have been provided by 28 the parties, and as to which there is no factual dispute. The material facts pertinent to the motion are to be 4 1 Because Respondent's motion to dismiss is similar in procedural 2 standing to motions to dismiss on procedural grounds, the Court 3 will review Respondent’s motion to dismiss pursuant to its 4 authority under Rule 4. 5 III. 6 Petitioner alleges that he was an inmate of CSATFSP serving 7 a sentence of life plus eight (8) years imposed by the San Diego 8 County Superior Court in 1990 upon Petitioner’s conviction of 9 kidnaping for the purpose of robbery with great bodily injury, Background 10 vehicle theft, first degree robbery, and use of a deadly weapon 11 in violation of Cal. Pen. Code §§ 209(b), 212.5(a), and 12022(d). 12 (Pet. 2.) 13 Board of Parole Hearings (BPH) finding Petitioner unsuitable for 14 parole after a hearing held on August 7, 2008. 15 Petitioner alleges that his due process rights were violated 16 because the BPH denied parole without any evidence to support the 17 determination that Petitioner posed a current, unreasonable risk 18 of danger. 19 liberty interest in parole was infringed by the BPH’s improper 20 reliance on Petitioner’s commitment offense and history of 21 criminality and instability associated with drugs. 22 argues that the evidence before the BPH warranted a grant of 23 parole. 24 Petitioner challenges the decision of California’s (Pet. 5.) (Pet. 67.) Petitioner argues that his state-created Petitioner (Pet. 5-8.) Petitioner attached to the petition a copy of the transcript 25 of the parole hearing held before the BPH on August 7, 2008. 26 (Pet. 15-66.) 27 documents before the parole hearing and was given an opportunity 28 to correct or clarify the record (pet. 21); appeared at the The transcript reflects that Petitioner received 5 1 hearing (pet. 15, 62); addressed the BPH under oath concerning 2 multiple factors of parole suitability (pet. 22-56); made a 3 personal statement to the BPH concerning his suitability for 4 parole (pet. 61); and was represented by counsel, who advocated 5 and made a closing statement in favor of parole on Petitioner’s 6 behalf (pet. 15, 18, 21, 57-60 ). 7 Further, Petitioner was present when the BPH stated the 8 reasons for their decision to deny Petitioner parole for one 9 year, which included Petitioner’s commitment offense, his history 10 of criminality and drug use, his commission of a disciplinary 11 offense in prison, and the opposition of the prosecutor to 12 Petitioner’s release. (Pet. 62-66.) 13 IV. 14 The Supreme Court has characterized as reasonable the Failure to State a Cognizable Claim 15 decision of the Court of Appeals for the Ninth Circuit that 16 California law creates a liberty interest in parole protected by 17 the Fourteenth Amendment Due Process Clause, which in turn 18 requires fair procedures with respect to the liberty interest. 19 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 20 However, the procedures required for a parole determination 21 are the minimal requirements set forth in Greenholtz v. Inmates 22 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 23 1 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, 6 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 federal requirement, and correct application of California’s 22 “some evidence” standard is not required by the federal Due 23 Process Clause. Id. at 862-63. 24 25 26 27 28 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. 7 1 Here, Petitioner asks this Court to engage in the very type 2 of analysis foreclosed by Swarthout. 3 facts that point to a real possibility of constitutional error or 4 that otherwise would entitle Petitioner to habeas relief because 5 California’s “some evidence” requirement is not a substantive 6 federal requirement. 7 support the denial of parole is not within the scope of this 8 Court’s habeas review under 28 U.S.C. § 2254. Petitioner does not state Review of the record for “some evidence” to 9 A petition for habeas corpus should not be dismissed without 10 leave to amend unless it appears that no tenable claim for relief 11 can be pleaded were such leave granted. 12 F.2d 13, 14 (9th Cir. 1971). 13 Jarvis v. Nelson, 440 Here, Petitioner did not claim that he lacked an opportunity 14 to be heard or a statement of reasons for the BPH’s decision. 15 However, it is clear from the allegations in the petition that 16 Petitioner attended the parole suitability hearing, made 17 statements to the BPH, and received a statement of reasons for 18 the decision of the BPH. 19 attached documentation establish that he had an opportunity to be 20 heard and a statement of reasons for the decision in question. 21 It therefore does not appear that Petitioner could state a 22 tenable due process claim. 23 Thus, Petitioner’s own allegations and Accordingly, it will be recommended that the Respondent’s 24 motion to dismiss be granted, and the petition be dismissed 25 without leave to amend. 26 V. 27 Unless a circuit justice or judge issues a certificate of 28 Certificate of Appealability appealability, an appeal may not be taken to the Court of Appeals 8 1 from the final order in a habeas proceeding in which the 2 detention complained of arises out of process issued by a state 3 court. 4 U.S. 322, 336 (2003). 5 only if the applicant makes a substantial showing of the denial 6 of a constitutional right. 7 petitioner must show that reasonable jurists could debate whether 8 the petition should have been resolved in a different manner or 9 that the issues presented were adequate to deserve encouragement 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 to proceed further. 11 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 12 certificate should issue if the Petitioner shows that jurists of 13 reason would find it debatable whether the petition states a 14 valid claim of the denial of a constitutional right and that 15 jurists of reason would find it debatable whether the district 16 court was correct in any procedural ruling. 17 529 U.S. 473, 483-84 (2000). 18 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 19 the claims in the habeas petition, generally assesses their 20 merits, and determines whether the resolution was debatable among 21 jurists of reason or wrong. 22 applicant to show more than an absence of frivolity or the 23 existence of mere good faith; however, it is not necessary for an 24 applicant to show that the appeal will succeed. 25 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 26 A district court must issue or deny a certificate of 27 appealability when it enters a final order adverse to the 28 applicant. Habeas Rule 11(a). 9 1 Here, it does not appear that reasonable jurists could 2 debate whether the petition should have been resolved in a 3 different manner. 4 of the denial of a constitutional right. 5 6 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 7 VI. 8 Accordingly, it is RECOMMENDED that: 9 1) Respondent’s motion to dismiss the petition be GRANTED; 2) The petition be DISMISSED without leave to amend for 10 11 Recommendations and 12 failure to state a claim cognizable in a proceeding pursuant to 13 28 U.S.C. § 2254; and 14 15 16 3) The Court DECLINE to issue a certificate of appealability; and 4) The Clerk be DIRECTED to close the action because 17 dismissal of the action would terminate the action in its 18 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 10 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 May 26, 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 11
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