-SKO (HC) Patterson v. Cavazos, No. 1:2010cv01427 - Document 16 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS re: Respondent's Motion to Dismiss 14 the Petition 1 ; 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, signed by Magistrate Judge Sheila K. Oberto on 6/13/11. Referred to Judge O'Neill. (Verduzco, M)
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-SKO (HC) Patterson v. Cavazos Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 TERESA PATTERSON, 11 Petitioner, 12 v. 13 J. CAVAZOS, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01427-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 14, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 16 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. Pending 22 before the Court is Respondent’s motion to dismiss the petition, 23 which was filed on February 14, 2011. Petitioner filed an 24 opposition to the motion on February 28, 2011. No reply was 25 filed. 26 I. Background 27 Petitioner alleges that she was an inmate of the Central 28 1 Dockets.Justia.com 1 California Women’s Facility at Chowchilla, California, serving a 2 sentence of twenty-five (25) years to life imposed on April 12, 3 1985, by the San Bernardino County Superior Court upon 4 Petitioner’s conviction of first degree murder in violation of 5 Cal. Pen. Code 187. 6 (Pet. 2.) Petitioner challenges the decision of California’s Board of 7 Parole Hearings (BPH) made after a hearing held on August 18, 8 2008, finding Petitioner unsuitable for parole. 9 Petitioner alleges that she suffered a denial of due process 10 because there was no evidence to support the BPH’s decision. 11 Petitioner argues that evidence of her rehabilitation precluded 12 the BPH’s reliance on the commitment offense and other unchanging 13 factors to support a finding that Petitioner continued to present 14 a danger if she were released. 15 regulatory law in support of her release. (Pet. 5.) Petitioner also cites California (Id. at 6.) 16 II. 17 Because the petition was filed after April 24, 1996, the Failure to State a Cognizable Due Process Claim 18 effective date of the Antiterrorism and Effective Death Penalty 19 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 20 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 21 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 22 A district court may entertain a petition for a writ of 23 habeas corpus by a person in custody pursuant to the judgment of 24 a state court only on the ground that the custody is in violation 25 of the Constitution, laws, or treaties of the United States. 28 26 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 27 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 28 16 (2010) (per curiam). 2 Lindh 1 The Supreme Court has characterized as reasonable the 2 decision of the Court of Appeals for the Ninth Circuit that 3 California law creates a liberty interest in parole protected by 4 the Fourteenth Amendment Due Process Clause, which in turn 5 requires fair procedures with respect to the liberty interest. 6 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 7 However, the procedures required for a parole determination 8 are the minimal requirements set forth in Greenholtz v. Inmates 9 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 10 Swarthout v. Cooke, 131 S.Ct. 859, 862. 11 rejected inmates’ claims that they were denied a liberty interest 12 because there was an absence of “some evidence” to support the 13 decision to deny parole. 14 15 16 17 18 19 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 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. 3 1 2 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.) 3 Swarthout, 131 S.Ct. 859, 862. The Court concluded that the 4 petitioners had received the process that was due as follows: 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. 10 Swarthout, 131 S.Ct. at 862. 11 noted that California’s “some evidence” rule is not a substantive 12 federal requirement, and correct application of California’s 13 “some evidence” standard is not required by the federal Due 14 Process Clause. 15 The Court in Swarthout expressly Id. at 862-63. Petitioner asks this Court to engage in the very type of 16 analysis foreclosed by Swarthout. 17 facts that point to a real possibility of constitutional error or 18 that otherwise would entitle Petitioner to habeas relief because 19 California’s “some evidence” requirement is not a substantive 20 federal requirement. 21 support the denial of parole is not within the scope of this 22 Court’s habeas review under 28 U.S.C. § 2254. 23 Petitioner does not state Review of the record for “some evidence” to Petitioner cites state law concerning the determination of 24 parole suitability. 25 claims rest on state law, they are not cognizable on federal 26 habeas corpus. 27 state issue that does not rise to the level of a federal 28 constitutional violation. To the extent that Petitioner’s claim or Federal habeas relief is not available to retry a Wilson v. Corcoran, 562 U.S. — , 131 4 1 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 2 (1991). 3 cognizable in federal habeas corpus. 4 616, 623 (9th Cir. 2002). 5 Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d In summary, the Court concludes that Petitioner has failed 6 to state a due process claim cognizable in a proceeding pursuant 7 to 28 U.S.C. § 2254. 8 A petition for habeas corpus should not be dismissed without 9 leave to amend unless it appears that no tenable claim for relief 10 can be pleaded were such leave granted. 11 F.2d 13, 14 (9th Cir. 1971). 12 Jarvis v. Nelson, 440 Here, Petitioner has not alleged that she was deprived of an 13 opportunity to be heard or a statement of reasons for the 14 decision. 15 the Court with a transcript of the parole suitability hearing. 16 However, it is clear from the allegations in the petition that 17 Petitioner attended the parole suitability hearing (pet. 5) and 18 made statements to the BPH in the course of answering questions 19 posed by the commissioners at the hearing (id. at 6). 20 from Petitioner’s repeated references to the BPH’s reasons for 21 the denial of parole, it is reasonably inferred that Petitioner 22 received a statement of reasons for the decision of the BPH. 23 Further, neither Petitioner nor Respondent provided Further, Thus, Petitioner’s own allegations establish that she had an 24 opportunity to be heard and received a statement of reasons for 25 the decision in question. 26 Petitioner could state a tenable due process claim. 27 28 It therefore does not appear that Accordingly, it will be recommended that the motion to dismiss the petition be granted, and the petition be dismissed 5 1 without leave to amend. 2 III. 3 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 4 appealability, an appeal may not be taken to the Court of Appeals 5 from the final order in a habeas proceeding in which the 6 detention complained of arises out of process issued by a state 7 court. 8 U.S. 322, 336 (2003). 9 only if the applicant makes a substantial showing of the denial 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 10 of a constitutional right. 11 petitioner must show that reasonable jurists could debate whether 12 the petition should have been resolved in a different manner or 13 that the issues presented were adequate to deserve encouragement 14 to proceed further. 15 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 16 certificate should issue if the Petitioner shows that jurists of 17 reason would find it debatable whether the petition states a 18 valid claim of the denial of a constitutional right and that 19 jurists of reason would find it debatable whether the district 20 court was correct in any procedural ruling. 21 529 U.S. 473, 483-84 (2000). 22 § 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 23 the claims in the habeas petition, generally assesses their 24 merits, and determines whether the resolution was debatable among 25 jurists of reason or wrong. 26 applicant to show more than an absence of frivolity or the 27 existence of mere good faith; however, it is not necessary for an 28 applicant to show that the appeal will succeed. Id. It is necessary for an 6 Miller-El v. 1 Cockrell, 537 U.S. at 338. 2 A district court must issue or deny a certificate of 3 appealability when it enters a final order adverse to the 4 applicant. 5 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 6 debate whether the petition should have been resolved in a 7 different manner. 8 of the denial of a constitutional right. 9 10 Petitioner has not made a substantial showing Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 11 IV. 12 Accordingly, it is RECOMMENDED that: 13 1) Respondent’s motion to dismiss the petition be GRANTED; 15 2) The petition be DISMISSED without leave to amend; and 16 3) The Court DECLINE to issue a certificate of 14 17 18 19 Recommendation and appealability; and 4) The Clerk be DIRECTED to close the case because an order of dismissal would terminate the case in its entirety. 20 These findings and recommendations are submitted to the 21 United States District Court Judge assigned to the case, pursuant 22 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 23 the Local Rules of Practice for the United States District Court, 24 Eastern District of California. 25 being served with a copy, any party may file written objections 26 with the Court and serve a copy on all parties. 27 should be captioned “Objections to Magistrate Judge’s Findings 28 and Recommendations.” Within thirty (30) days after Such a document Replies to the objections shall be served 7 1 and filed within fourteen (14) days (plus three (3) days if 2 served by mail) after service of the objections. 3 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 4 636 (b)(1)(C). 5 objections within the specified time may waive the right to 6 appeal the District Court’s order. 7 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 8 9 10 IT IS SO ORDERED. Dated: ie14hj June 13, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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