(HC) Adams v. Clark, No. 1:2010cv01820 - Document 17 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the Petition 1 for Failure to State a Cognizable Claim, Dismiss Petitioner's Motion for an Extension of Time as Moot 16 , Decline to Issue a Certificate Appealabiity, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 5/9/11. Referred to Judge O'Neill. Objections Deadline: Thirty (30) Days. (Gonzalez, R)
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(HC) Adams v. Clark Doc. 17 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 PHILLIP ADAMS, 11 Petitioner, 12 v. 13 KEN CLARK, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01820-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1), DISMISS PETITIONER’S MOTION FOR AN EXTENSION OF TIME AS MOOT (DOC. 16), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 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 the Court is the petition, which was filed in this Court on 23 September 20, 2010. Pending before 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). Advisory Committee Notes to Habeas Rule 22 In the present case, on December 17, 2010, the Court’s 23 initial screening of the petition resulted in the issuance of an 24 order to Petitioner to show cause why the petition should not be 25 dismissed for failure to exhaust state court remedies. 26 27 28 2 1 2 Petitioner sought extensions of time within which to respond.1 Subsequently, the United States Supreme Court decided 3 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 4 Because Swarthout appears to govern the instant case, the Court 5 proceeds to consider whether the petition states a cognizable 6 claim for relief. 7 II. 8 Petitioner alleges that he was an inmate of the California 9 Background Substance Abuse Treatment Facility at Corcoran, California 10 (CSATF), who is serving a sentence of fifteen (15) years to life 11 imposed in the Los Angeles County Superior Court pursuant to 12 Petitioner’s 1980 conviction of second degree murder. 13 Petitioner challenges the decision of California’s Board of 14 Parole Hearings (BPH) finding Petitioner unsuitable for parole 15 made after a hearing held on May 27, 2009; Petitioner also argues 16 that the state court decisions upholding the governor’s parole 17 determination were objectively unreasonable. 18 (Pet. 1.) (Pet. 5-6, 10, 2.) It appears from Petitioner’s allegations and the partial 19 transcript of the parole hearing submitted by Petitioner in 20 support of the petition that he attended the parole hearing 21 before the Board on May 27, 2009, and had an opportunity to 22 address the board concerning parole suitability factors such as 23 his disciplinary history and his work as a caregiver. 24 12-18.) 25 BPH’s denial of parole, which was based on the board’s conclusion (Pet. 10, Petitioner was given a statement of reasons for the 26 27 28 1 In view of the recommendation in this order that the petition be dismissed, it will be recommended that the Court dismiss as moot Petitioner’s pending motion for an extension of time to respond to the order to show cause regarding exhaustion. 3 1 that Petitioner would pose an unreasonable risk of danger or 2 threat to public safety if released from prison. 3 18.) 4 disciplinary history, which reflected a long-term, major problem 5 with anger. 6 (Pet. 12, 12- The reasons included Petitioner’s violent criminal and (Pet. 12-18.) Petitioner asks this Court to review whether there was some 7 evidence to support the conclusion that Petitioner was unsuitable 8 for parole because he posed a current threat of danger to the 9 public if released. (Pet. 5-6.) Petitioner argues that his 10 right to due process of law under the Fourteenth Amendment was 11 violated because the evidence of Petitioner’s past disciplinary 12 problems was stale and insufficient to support the finding of 13 current danger, the board failed to articulate a rational nexus 14 between his history and current dangerousness, and the board 15 failed to conduct an individualized assessment of each of the 16 statutory factors of parole suitability as required by California 17 statutes and case law. (Pet. 5-6.) 18 III. 19 Because the petition was filed after April 24, 1996, the Failure to Allege a Claim Cognizable on Habeas Corpus 20 effective date of the Antiterrorism and Effective Death Penalty 21 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 22 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 23 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 24 A district court may entertain a petition for a writ of 25 habeas corpus by a person in custody pursuant to the judgment of 26 a state court only on the ground that the custody is in violation 27 of the Constitution, laws, or treaties of the United States. 28 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 4 Lindh 1 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 2 16 (2010) (per curiam). 3 The Supreme Court has characterized as reasonable the 4 decision of the Court of Appeals for the Ninth Circuit that 5 California law creates a liberty interest in parole protected by 6 the Fourteenth Amendment Due Process Clause, which in turn 7 requires fair procedures with respect to the liberty interest. 8 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 9 However, the procedures required for a parole determination 10 are the minimal requirements set forth in Greenholtz v. Inmates 11 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).2 12 Swarthout v. Cooke, 131 S.Ct. 859, 862. 13 rejected inmates’ claims that they were denied a liberty interest 14 because there was an absence of “some evidence” to support the 15 decision to deny parole. 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 20 2 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 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.) 5 Swarthout, 131 S.Ct. 859, 862. The Court concluded that the 6 petitioners had received the process that was due as follows: 7 8 9 10 11 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. 12 Swarthout, 131 S.Ct. at 862. 13 noted that California’s “some evidence” rule is not a substantive 14 federal requirement, and correct application of California’s 15 “some evidence” standard is not required by the federal Due 16 Process Clause. 17 The Court in Swarthout expressly Id. at 862-63. Here, Petitioner asks this Court to engage in the very type 18 of analysis foreclosed by Swarthout. 19 facts that point to a real possibility of constitutional error or 20 that otherwise would entitle Petitioner to habeas relief because 21 California’s “some evidence” requirement is not a substantive 22 federal requirement. 23 support the denial of parole is not within the scope of this 24 Court’s habeas review under 28 U.S.C. § 2254. 25 Petitioner does not state Review of the record for “some evidence” to Petitioner’s claim that he did not receive a sufficiently 26 individualized consideration of the factors appropriate under 27 California law is likewise not cognizable. 28 process to which Petitioner is entitled does not include any 6 The minimal due 1 2 particular degree of individualized consideration. Petitioner cites state law concerning the process of 3 granting parole and parole suitability. 4 Petitioner’s claim or claims rest on state law, they are not 5 cognizable on federal habeas corpus. 6 not available to retry a state issue that does not rise to the 7 level of a federal constitutional violation. 8 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 9 U.S. 62, 67-68 (1991). To the extent that Federal habeas relief is Wilson v. Corcoran, Alleged errors in the application of 10 state law are not cognizable in federal habeas corpus. 11 Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). Souch v. 12 A petition for habeas corpus should not be dismissed without 13 leave to amend unless it appears that no tenable claim for relief 14 can be pleaded were such leave granted. 15 F.2d 13, 14 (9th Cir. 1971). 16 Jarvis v. Nelson, 440 Here, the allegations in the petition and the supporting 17 documentation reveal that Petitioner attended the parole 18 suitability hearing, made statements to the BPH, and received a 19 statement of reasons for the decisions of the BPH. 20 Petitioner’s own allegations establish that he had an opportunity 21 to be heard and received a statement of reasons for the decisions 22 in question. 23 It therefore does not appear that Petitioner could state a 24 tenable due process claim. 25 26 Thus, Petitioner thus received all process that was due. Accordingly, it will be recommended that the petition be dismissed without leave to amend. 27 IV. 28 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 7 1 appealability, an appeal may not be taken to the Court of Appeals 2 from the final order in a habeas proceeding in which the 3 detention complained of arises out of process issued by a state 4 court. 5 U.S. 322, 336 (2003). 6 only if the applicant makes a substantial showing of the denial 7 of a constitutional right. 8 petitioner must show that reasonable jurists could debate whether 9 the petition should have been resolved in a different manner or 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 that the issues presented were adequate to deserve encouragement 11 to proceed further. 12 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 13 certificate should issue if the Petitioner shows that jurists of 14 reason would find it debatable whether the petition states a 15 valid claim of the denial of a constitutional right and that 16 jurists of reason would find it debatable whether the district 17 court was correct in any procedural ruling. 18 529 U.S. 473, 483-84 (2000). 19 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 20 the claims in the habeas petition, generally assesses their 21 merits, and determines whether the resolution was debatable among 22 jurists of reason or wrong. 23 applicant to show more than an absence of frivolity or the 24 existence of mere good faith; however, it is not necessary for an 25 applicant to show that the appeal will succeed. 26 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 27 A district court must issue or deny a certificate of 28 appealability when it enters a final order adverse to the 8 1 2 applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 3 debate whether the petition should have been resolved in a 4 different manner. 5 of the denial of a constitutional right. 6 recommended that the Court decline to issue a certificate of 7 appealability. Petitioner has not made a substantial showing 8 V. 9 Accordingly, it will be Accordingly, it is RECOMMENDED that: 10 1) Recommendation The petition for writ of habeas corpus be DISMISSED 11 without leave to amend because Petitioner has failed to state a 12 claim cognizable pursuant to 28 U.S.C. § 2254; and 13 2) Petitioner’s motion for an extension of time within 14 which to respond to the order to show cause regarding exhaustion 15 be DISMISSED as moot; and 16 17 18 19 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. 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 9 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 May 9, 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 10
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