-SKO (HC) Algenon McCall v. James D. Hartley, No. 1:2010cv01386 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's Motion to Dismiss the Petition, to Dismiss the Petition With Prejudice and Without Leave to Amend for Failure to State a Cognizable Claim, and to Decline to Issue a Certification of Appealability 1 , 13 , signed by Magistrate Judge Sheila K. Oberto on 5/3/11: Matter REFERRED to Judge O'Neill; Objections to F&R due by 6/6/2011, Reply due 14 days (+3 days if served by mail) after service of the Objections. (Hellings, J)
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-SKO (HC) Algenon McCall v. James D. Hartley Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 ALGENON McCALL, 11 Petitioner, 12 v. 13 JAMES D. HARTLEY, Warden, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01386-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION, TO DISMISS THE PETITION WITH PREJUDICE AND WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (Docs. 1, 13), AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 Petitioner is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 The matter has been referred to the Magistrate Judge pursuant to 21 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 22 Pending before the Court is a motion to dismiss the petition 23 filed by Respondent on February 8, 2011. 24 response to the motion to dismiss, Petitioner filed a motion to 25 dismiss his case “without prejudice” based on Swarthout v. Cooke, 26 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 27 electronically served with Petitioner’s motion but did not file 28 any opposition or other response to it. On March 14, 2011, in Respondent was 1 Dockets.Justia.com 1 I. 2 Because the petition was filed after April 24, 1996, the Proceeding pursuant to Respondent’s Motion to Dismiss 3 effective date of the Antiterrorism and Effective Death Penalty 4 Act of 1996 (AEDPA), the AEDPA applies to the petition. 5 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 6 1484, 1499 (9th Cir. 1997). Lindh v. 7 A district court may entertain a petition for a writ of 8 habeas corpus by a person in custody pursuant to the judgment of 9 a state court only on the ground that the custody is in violation 10 of the Constitution, laws, or treaties of the United States. 11 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 12 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 13 16 (2010) (per curiam). 14 28 Rule 4 of the Rules Governing Section 2254 Cases (Habeas 15 Rules) allows a district court to dismiss a petition if it 16 “plainly appears from the face of the petition and any exhibits 17 annexed to it that the petitioner is not entitled to relief in 18 the district court....” 19 The Ninth Circuit has allowed respondents to file motions to 20 dismiss pursuant to Rule 4 instead of answers if the motion to 21 dismiss attacks the pleadings by claiming that the petitioner has 22 failed to exhaust state remedies or has violated the state’s 23 procedural rules. 24 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 25 a petition for failure to exhaust state remedies); White v. 26 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 27 review a motion to dismiss for state procedural default); Hillery 28 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). See, e.g., O’Bremski v. Maass, 915 F.2d 418, 2 1 Thus, a respondent may file a motion to dismiss after the Court 2 orders the respondent to respond, and the Court should use Rule 4 3 standards to review a motion to dismiss filed before a formal 4 answer. 5 See, Hillery, 533 F. Supp. at 1194 & n.12. The material facts pertinent to the motion before the Court 6 are to be found in copies of the official records of state parole 7 and judicial proceedings which have been provided by the parties, 8 and as to which there is no factual dispute. 9 Respondent's motion to dismiss is similar in procedural standing Because 10 to motions to dismiss on procedural grounds, the Court will 11 review Respondent’s motion to dismiss pursuant to its authority 12 under Rule 4. 13 II. 14 In the petition, Petitioner challenges a decision of Background 15 California’s Board of Parole Hearings (BPH) made after a hearing 16 held on August 21, 2008, at which Petitioner appeared. 17 Petitioner claims that the decision to deny his application for 18 parole denied his right to due process of law because there was 19 no evidence to support the finding that Petitioner was in fact a 20 present danger to public safety. 21 decision contravened state regulations governing the parole 22 decision. He also alleges that the (Pet. 5.) 23 It appears from Petitioner’s allegations and the partial 24 transcript of the parole hearing submitted with the petition that 25 Petitioner attended the parole hearing before the board on August 26 21, 2008 (doc. 13-1, 33-35); spoke to the board about numerous 27 suitability factors (doc. 13-1, 37-73; doc. 13-2, 1-12); and made 28 an extensive statement to the BPH on his own behalf concerning 3 1 his suitability for parole (doc. 13-2, 21-31). 2 attorney appeared with Petitioner. 3 An appointed (Doc. 13-1, 35.) The transcript of the hearing also reflects that Petitioner 4 was present at the conclusion of the hearing when the BPH 5 explained why it decided that Petitioner was not suitable for 6 parole. 7 offense, Petitioner’s criminal history and unstable social 8 history, failures on earlier grants of probation and parole, some 9 details in Petitioner’s parole plans, and Petitioner’s failure to The board relied on the nature of the commitment 10 take full responsibility for the crime and to develop insight 11 concerning his offense. (Doc. 13-2, 35-44.) 12 Petitioner asks this Court to review whether there was some 13 evidence to support the conclusion that Petitioner was unsuitable 14 for parole because he posed a current threat of danger to the 15 public if released. 16 there was an absence of some evidence to support the BPH’s 17 decision, the state courts’ decisions upholding the denial of 18 parole were unreasonable applications of clearly established 19 federal law, and his right to due process of law was violated. 20 (Id. at 5.) 21 relief because the Board failed to follow its own regulations. 22 (Pet. 5.) 23 III. 24 The Supreme Court has characterized as reasonable the (Pet. 5.) Petitioner contends that because Petitioner also alleges that he is entitled to Failure to State a Cognizable Claim 25 decision of the Court of Appeals for the Ninth Circuit that 26 California law creates a liberty interest in parole protected by 27 the Fourteenth Amendment Due Process Clause, which in turn 28 requires fair procedures with respect to the liberty interest. 4 1 2 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). However, the procedures required for a parole determination 3 are the minimal requirements set forth in Greenholtz v. Inmates 4 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 5 Swarthout v. Cooke, 131 S.Ct. 859, 862. 6 rejected inmates’ claims that they were denied a liberty interest 7 because there was an absence of “some evidence” to support the 8 decision to deny parole. 9 10 11 12 13 14 15 16 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.) 17 Swarthout, 131 S.Ct. 859, 862. 18 petitioners had received the process that was due as follows: 19 They were allowed to speak at their parole hearings The Court concluded that the 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 2 3 4 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. 5 Swarthout, 131 S.Ct. at 862. 6 noted that California’s “some evidence” rule is not a substantive 7 federal requirement, and correct application of California’s 8 “some evidence” standard is not required by the federal Due 9 Process Clause. 10 The Court in Swarthout expressly Id. at 862-63. Here, Petitioner asks this Court to engage in the very type 11 of analysis foreclosed by Swarthout. 12 facts that point to a real possibility of constitutional error or 13 that otherwise would entitle Petitioner to habeas relief because 14 California’s “some evidence” requirement is not a substantive 15 federal requirement. 16 support the denial of parole is not within the scope of this 17 Court’s habeas review under 28 U.S.C. § 2254. 18 Petitioner does not state Review of the record for “some evidence” to Petitioner cites state regulatory law concerning the 19 determination of suitability for parole. 20 Petitioner’s claim or claims rest on state law, they are not 21 cognizable on federal habeas corpus. 22 not available to retry a state issue that does not rise to the 23 level of a federal constitutional violation. 24 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 25 U.S. 62, 67-68 (1991). 26 state law are not cognizable in federal habeas corpus. 27 Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 28 To the extent that Federal habeas relief is Wilson v. Corcoran, Alleged errors in the application of Souch v. A petition for habeas corpus should not be dismissed without 6 1 leave to amend unless it appears that no tenable claim for relief 2 can be pleaded were such leave granted. 3 F.2d 13, 14 (9th Cir. 1971). 4 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition and 5 the related documentation that Petitioner attended the parole 6 suitability hearing, made statements to the BPH, and received a 7 statement of reasons for the decision of the BPH. 8 appears from the face of the petition that Petitioner received 9 all process that was due, Petitioner cannot state a tenable due 10 11 12 Because it process claim. Accordingly, it will be recommended that the petition be dismissed without leave to amend. 13 IV. 14 In response to Respondent’s motion to dismiss, Petitioner 15 requested a dismissal without prejudice based on the Swarthout 16 decision. 17 Request for Dismissal without Prejudice The Court is not inclined to dismiss the petition without 18 prejudice at this juncture. 19 dismissal without prejudice, the Court had undertaken a 20 preliminary review of the petition and had directed the 21 Respondent to respond to the petition. 22 whether or not the facts stated in the petition entitled 23 petitioner to habeas relief had been brought before the Court in 24 a motion to dismiss appropriately filed by Respondent in response 25 to the Court’s order to respond to the petition and in light of 26 intervening Supreme Court authority concerning the cognizability 27 of claims such as Petitioner’s. 28 By the time Petitioner requested Further, the question of A court has inherent power to control its docket and the 7 1 disposition of its cases with economy of time and effort for both 2 the court and the parties. 3 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 4 (9th Cir. 1992). 5 prejudice before the Court were to consider whether Petitioner’s 6 claims are even cognizable in a proceeding pursuant to § 2254, 7 then it is theoretically possible that Petitioner could file 8 another petition with the same allegations, and all the effort of 9 the Court and the parties heretofore expended in this proceeding 10 11 Landis v. North American Co., 299 If this petition were dismissed without would be wasted. The Court therefore declines to grant Petitioner’s request 12 concerning a dismissal without prejudice, but the Court does 13 consider Petitioner’s request for dismissal on the basis of 14 Swarthout as an indication of Petitioner’s absence of opposition 15 to the motion to dismiss. 16 Further, the Court’s determination that Petitioner’s factual 17 allegations did not entitle Petitioner to habeas relief has the 18 attributes of a dismissal with prejudice. 19 prejudice is generally appropriate where it has been determined 20 that leave to amend should not be granted because of the futility 21 of amendment. 22 F.3d 1048, 1051-52 (9th Cir. 2003). 23 includes a determination that because Petitioner received all the 24 process that was due, Petitioner could not possibly plead a 25 tenable due process claim. 26 because of futility. 27 all the issues before the Court raised by the motion to dismiss 28 or by Petitioner’s petition and the submitted documentation of A dismissal with See, Eminence Capital, LLC v. Aspeon, Inc., 316 The Court’s decision Thus, leave to amend is not warranted In addition, the Court’s order disposed of 8 1 the parole proceedings. 2 Accordingly, it will be recommended that the motion to 3 dismiss be granted, and that the petition be dismissed with 4 prejudice for failure to state facts entitling Petitioner to 5 habeas relief pursuant to 28 U.S.C. § 2254. 6 V. 7 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 8 appealability, an appeal may not be taken to the Court of Appeals 9 from the final order in a habeas proceeding in which the 10 detention complained of arises out of process issued by a state 11 court. 12 U.S. 322, 336 (2003). 13 only if the applicant makes a substantial showing of the denial 14 of a constitutional right. 15 petitioner must show that reasonable jurists could debate whether 16 the petition should have been resolved in a different manner or 17 that the issues presented were adequate to deserve encouragement 18 to proceed further. 19 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 20 certificate should issue if the Petitioner shows that jurists of 21 reason would find it debatable whether the petition states a 22 valid claim of the denial of a constitutional right and that 23 jurists of reason would find it debatable whether the district 24 court was correct in any procedural ruling. 25 529 U.S. 473, 483-84 (2000). 26 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 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 27 the claims in the habeas petition, generally assesses their 28 merits, and determines whether the resolution was debatable among 9 1 jurists of reason or wrong. 2 applicant to show more than an absence of frivolity or the 3 existence of mere good faith; however, it is not necessary for an 4 applicant to show that the appeal will succeed. 5 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 6 A district court must issue or deny a certificate of 7 appealability when it enters a final order adverse to the 8 applicant. 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 10 debate whether the petition should have been resolved in a 11 different manner. 12 of the denial of a constitutional right. 13 recommended that the Court decline to issue a certificate of 14 appealability. 15 VI. 16 Accordingly, it is RECOMMENDED that: 17 1) Respondent’s motion to dismiss be GRANTED; and 18 2) The petition for writ of habeas corpus be DISMISSED Petitioner has not made a substantial showing Accordingly, it will be Recommendations 19 without leave to amend and with prejudice because Petitioner has 20 failed to state a claim that is cognizable in a proceeding 21 pursuant to 28 U.S.C. § 2254; and 22 23 24 25 3) The Court DECLINE to issue a certificate of appealability; and 4) The Clerk be DIRECTED to close the action because dismissal would terminate the proceeding in its entirety. 26 These findings and recommendations are submitted to the 27 United States District Court Judge assigned to the case, pursuant 28 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 10 1 the Local Rules of Practice for the United States District Court, 2 Eastern District of California. 3 being served with a copy, any party may file written objections 4 with the Court and serve a copy on all parties. 5 should be captioned “Objections to Magistrate Judge’s Findings 6 and Recommendations.” 7 and filed within fourteen (14) days (plus three (3) days if 8 served by mail) after service of the objections. 9 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § Within thirty (30) days after Such a document Replies to the objections shall be served The Court will 10 636 (b)(1)(C). 11 objections within the specified time may waive the right to 12 appeal the District Court’s order. 13 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 14 15 IT IS SO ORDERED. 16 Dated: ie14hj May 3, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 11
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