-SKO (HC) Araiza v. Hartley, No. 1:2010cv01531 - Document 13 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS re: Respondent's 10 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 Sheila K. Oberto on 6/13/2011, referred to Judge Wanger. Objections Deadline: Thirty (30) Days. (Marrujo, C)
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-SKO (HC) Araiza v. Hartley Doc. 13 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 DANIEL ARAIZA, 10 Petitioner, 11 v. 12 J. HARTLEY, Warden, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01531-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 10, 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 15 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 302 and 304. Pending 21 before the Court is Respondent’s motion to dismiss the petition, 22 which was filed on February 3, 2011. Petitioner filed an 23 opposition to the motion on February 18, 2011. No reply was 24 filed. 25 I. Background 26 Petitioner alleged in the petition that he was an inmate of 27 the Avenal State Prison located at Avenal, California, serving a 28 1 Dockets.Justia.com 1 sentence of seven (7) years to life imposed by the Tehama County 2 Superior Court upon Petitioner’s conviction in 1996 of attempted 3 murder. 4 (Pet. 1.) Petitioner challenges the decision of California’s Board of 5 Parole Hearings (BPH) finding Petitioner unsuitable for parole 6 after a hearing held on April 3, 2009. 7 Petitioner raises various grounds, his arguments reduce to one 8 essential claim based on the Due Process Clause of the Fourteenth 9 Amendment. (Pet. 17.) Although Petitioner argues that the BPH’s finding that he was 10 unsuitable and its determination that the next suitability 11 hearing would not be held for five years lacked the support of 12 some evidence; the evidence of pertinent parole suitability 13 factors actually supported a grant of parole. 14 erroneously relied on unchanging factors because there was clear 15 evidence of Petitioner’s rehabilitation. 16 entitled to release because the facts of his case compared 17 favorably with those presented in other, specified cases reported 18 in California. 19 give him an individualized consideration of the pertinent data 20 and factors. 21 the procedures followed in reaching the decision, of the Tehama 22 County Superior Court in denying Petitioner’s petition for habeas 23 corpus and upholding the BPH’s decision, as well as the decisions 24 of higher state courts declining to grant relief. 25 The BPH Further, Petitioner was Petitioner also contends that the BPH failed to Finally, Petitioner challenges the decision, and (Pet. 1-51.) In support of the motion to dismiss, Respondent filed the 26 transcript of the hearing held on April 3, 2009. 27 doc. 10-1, 1-48.) 28 appeared at the hearing (Mot., Ex. 1, doc 10-1, 5, 1-48), (Mot., Ex. 1, The transcript reflects that Petitioner 2 1 received documents before the hearing and was given an 2 opportunity to correct of clarify the record (id. at 8-10), 3 answered under oath the BPH’s questions concerning numerous 4 factors of parole suitability (id. at 10-31), and declined to 5 make a personal statement (id. at 35). 6 advocated, and made a closing statement on Petitioner’s behalf. 7 (Id. at 5, 9, 31-36.) 8 9 An attorney appeared, Further, Petitioner was present when the BPH stated its reasons for the decision that Petitioner continued to present a 10 danger if released, which included the commitment offense, 11 Petitioner’s failure to take responsibility for his conduct or 12 express remorse, his unstable social history, his lack of 13 insight, and the prosecutor’s opposition to his release. 14 37-47.) (Id. at 15 II. 16 Because the petition was filed after April 24, 1996, the Failure to State a Cognizable Due Process Claim 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 /// 3 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. 4 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 appropriate weight 24 to be given to evidence. 25 or 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 Federal habeas relief is not available to retry a Wilson v. Corcoran, 562 U.S. — , 131 5 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 Petitioner’s claim that he did not receive a sufficiently 6 individualized consideration of the factors appropriate under 7 California law is likewise not cognizable. 8 Supreme Court, the minimal due process to which Petitioner is 9 entitled does not include any particular degree of individualized 10 11 As articulated by the consideration. Because Petitioner has not established a violation by the 12 BPH of his rights under the Fourteenth Amendment, the decisions 13 of the state courts upholding the BPH’s decision could not have 14 resulted in either 1) a decision that was contrary to, or 15 involved an unreasonable application of, clearly established 16 federal law, as determined by the Supreme Court of the United 17 States; or 2) a decision that was based on an unreasonable 18 determination of the facts in light of the evidence presented in 19 the state court proceedings. 20 state facts concerning the state court decisions that would 21 entitle him to relief. See, 28 U.S.C. § 2254(d). 22 Petitioner’s due process claim with respect to the state court 23 decisions should likewise be dismissed. 24 Thus, Petitioner has failed to Therefore, In summary, the Court concludes that Petitioner has failed 25 to state a due process claim cognizable in a proceeding pursuant 26 to 28 U.S.C. § 2254. 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 that 4 Petitioner attended the parole suitability hearing, made 5 statements to the BPH, and received a statement of reasons for 6 the decision of the BPH. 7 the undisputed record of the parole hearing establish that he had 8 an opportunity to be heard and a statement of reasons for the 9 decision in question. 10 11 Thus, Petitioner’s own allegations and It therefore does not appear that Petitioner could state a tenable due process claim. Accordingly, it will be recommended that the motion to 12 dismiss the petition be granted, and the petition be dismissed 13 without leave to amend. 14 III. 15 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 16 appealability, an appeal may not be taken to the Court of Appeals 17 from the final order in a habeas proceeding in which the 18 detention complained of arises out of process issued by a state 19 court. 20 U.S. 322, 336 (2003). 21 only if the applicant makes a substantial showing of the denial 22 of a constitutional right. 23 petitioner must show that reasonable jurists could debate whether 24 the petition should have been resolved in a different manner or 25 that the issues presented were adequate to deserve encouragement 26 to proceed further. 27 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 28 certificate should issue if the Petitioner shows that jurists of 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 reason would find it debatable whether the petition states a 2 valid claim of the denial of a constitutional right and that 3 jurists of reason would find it debatable whether the district 4 court was correct in any procedural ruling. 5 529 U.S. 473, 483-84 (2000). 6 Slack v. McDaniel, In determining this issue, a court conducts an overview of 7 the claims in the habeas petition, generally assesses their 8 merits, and determines whether the resolution was debatable among 9 jurists of reason or wrong. Id. It is necessary for an 10 applicant to show more than an absence of frivolity or the 11 existence of mere good faith; however, it is not necessary for an 12 applicant to show that the appeal will succeed. 13 Cockrell, 537 U.S. at 338. Miller-El v. 14 A district court must issue or deny a certificate of 15 appealability when it enters a final order adverse to the 16 applicant. 17 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 18 debate whether the petition should have been resolved in a 19 different manner. 20 of the denial of a constitutional right. 21 22 Petitioner has not made a substantial showing Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 23 IV. 24 Accordingly, it is RECOMMENDED that: 25 1) Respondent’s motion to dismiss the petition be GRANTED; 27 2) The petition be DISMISSED without leave to amend; and 28 3) The Court DECLINE to issue a certificate of appeal; and 26 Recommendation and 8 1 2 4) The Clerk be DIRECTED to close the case because an order of dismissal would terminate the case 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: ie14hj June 13, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 9
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