-SKO (HC) Sifuentes v. Hartley, No. 1:2010cv02233 - Document 13 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's 12 MOTION to DISMISS the Petition 1 , to Dismiss the Petition Without Leave to Amend For Failure to State a Cognizable Claim, and to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 5/27/2011, referred to Judge Wanger. Objections Deadline: Thirty (30) Days. (Marrujo, C)
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-SKO (HC) Sifuentes v. Hartley Doc. 13 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 OSCAR SIFUENTES, 9 Petitioner, 10 v. 11 J. D. HARTLEY, 12 Respondent. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—02233-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 12, 1), TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM, AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS 15 Petitioner is a state prisoner proceeding pro se and in 16 forma pauperis with a petition for writ of habeas corpus pursuant 17 to 28 U.S.C. § 2254. The matter has been referred to the 18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 19 Rules 302 and 304. Pending before the Court is Respondent’s 20 motion to dismiss the petition, which was filed and served by 21 mail on Petitioner on January 28, 2011. (Doc. 12, 4.) No 22 opposition or notice of non-opposition to the motion was filed. 23 I. Consideration of the Motion to Dismiss 24 Because the petition was filed after April 24, 1996, the 25 effective date of the Antiterrorism and Effective Death Penalty 26 Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. 27 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 28 1 Dockets.Justia.com 1 1484, 1499 (9th Cir. 1997). 2 A district court may entertain a petition for a writ of 3 habeas corpus by a person in custody pursuant to the judgment of 4 a state court only on the ground that the custody is in violation 5 of the Constitution, laws, or treaties of the United States. 6 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 7 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 8 16 (2010) (per curiam). 9 28 Rule 4 of the Rules Governing Section 2254 Cases (Habeas 10 Rules) allows a district court to dismiss a petition if it 11 “plainly appears from the face of the petition and any exhibits 12 annexed to it that the petitioner is not entitled to relief in 13 the district court....” 14 The Ninth Circuit has allowed respondents to file motions to 15 dismiss pursuant to Rule 4 instead of answers if the motion to 16 dismiss attacks the pleadings by claiming that the petitioner has 17 failed to exhaust state remedies or has violated the state’s 18 procedural rules. 19 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 20 a petition for failure to exhaust state remedies); White v. 21 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 22 review a motion to dismiss for state procedural default); Hillery 23 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 24 Thus, a respondent may file a motion to dismiss after the Court 25 orders the respondent to respond, and the Court should use Rule 4 26 standards to review a motion to dismiss filed before a formal 27 answer. 28 See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, before an answer was filed, the United States 2 1 Supreme Court decided Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 2 859 (2011), which appears to apply to the petition in the case 3 before the Court. 4 filed a motion to dismiss the petition because the petition does 5 not state a claim cognizable in a proceeding pursuant to 28 6 U.S.C. § 2254. 7 Within a few days of the decision, Respondent The material facts pertinent to the motion are to be found 8 in copies of the official records of state parole and judicial 9 proceedings which have been provided by the parties, and as to 10 which there is no factual dispute. 11 to dismiss is similar in procedural standing to motions to 12 dismiss on procedural grounds, the Court will review Respondent’s 13 motion to dismiss pursuant to its authority under Rule 4. Because Respondent's motion 14 II. 15 In the petition filed on December 2, 2010, Petitioner Background 16 alleges that he was an inmate of the Avenal State Prison at 17 Avenal, California, serving a sentence of twenty-seven (27) years 18 to life imposed by the Fresno County Superior Court upon 19 Petitioner’s conviction in May 1984 of first degree murder with 20 the use of a firearm. 21 decision of California’s Board of Parole Hearings (BPH) rendered 22 after a hearing held on October 7, 2009, finding Petitioner 23 unsuitable for parole. 24 the decisions of the state courts upholding the BPH’s decision on 25 the ground that the courts misapplied California’s “some 26 evidence” standard. 27 28 (Pet. 1.) Petitioner challenges the (Pet. 14.) Petitioner also challenges (Pet. 4.) Petitioner raises the following claims in the petition concerning a denial of due process of law (pet. 14-30): 1) the 3 1 decisions of the state courts were contrary to, or involved an 2 unreasonable application of, clearly established federal law; 2) 3 the state court decisions were based on an unreasonable 4 determination of facts in light of the evidence presented (pet. 5 4); 3) the BPH failed to apply the correct standard of review or 6 misapplied the standard of review of parole suitability factors 7 set by California law (pet. 5); 4) the BPH failed to articulate a 8 rational nexus between the evidence and the finding that 9 Petitioner then presented a danger to the public safety because 10 in light of Petitioner’s subsequent behavior and mental status, 11 the circumstances of the offense were no longer a reliable 12 indicator of dangerousness (pet. 5); 5) [also numbered as ground 13 three on pet. 6] Petitioner’s commitment offense was no more 14 cruel or heinous than any other first degree murder and thus 15 reliance on it to deny parole might deny due process of law (pet. 16 6); and 6) [also numbered as ground four on pet. 6] the factors 17 cited by the BPH as supporting denial of parole do not 18 demonstrate current danger, and thus reliance thereon was an 19 abuse of discretion in view of Petitioner’s history, his showing 20 of remorse and taking full responsibility for the offense, his 21 maturity, and a psychological evaluation concluding that he 22 presented a low risk of danger to the community (pet. 6). 23 The transcript of the parole hearing held on October 7, 24 2009, demonstrates that Petitioner received documents before the 25 hearing and was given an opportunity to clarify or correct the 26 record (pet. 38-39, 41), attended the hearing (pet. 33, 36), 27 voluntarily chose not to discuss any matter with the BPH on the 28 day of the hearing, and declined to make a closing statement. 4 1 (Pet. 41-42, 50, 60.) 2 advocated on Petitioner’s behalf, which included giving a closing 3 statement in favor of parole. 4 Petitioner’s attorney was given opportunities for input with 5 respect to factors of parole suitability. 6 The BPH considered the information reflected in the transcripts, 7 Petitioner’s C-File, and the BPH’s files. An attorney appeared at the hearing and (Pet. 36, 41, 45, 47, 55-60.) (Pet. 45, 47.) (Pet. 43-50.) 8 Petitioner was present when the BPH gave its reasons for 9 denying parole for three years, which included the commitment 10 offense, involvement of multiple victims and drug use, 11 Petitioner’s criminal history, unstable social history, failure 12 on previous grants of probation and after incarceration in the 13 county jail, drug and alcohol use, the prosecutor’s opposition to 14 release, and the uncertainty of Petitioner’s insight, attitude 15 toward the crime, and understanding of the nature and magnitude 16 of the offense. 17 III. 18 Because the petition was filed after April 24, 1996, the (Pet. 61-71.) Failure to Allege a Claim Cognizable on Habeas Corpus 19 effective date of the Antiterrorism and Effective Death Penalty 20 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 21 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 22 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 23 A district court may entertain a petition for a writ of 24 habeas corpus by a person in custody pursuant to the judgment of 25 a state court only on the ground that the custody is in violation 26 of the Constitution, laws, or treaties of the United States. 28 27 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 28 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 5 Lindh 1 2 16 (2010) (per curiam). The Supreme Court has characterized as reasonable the 3 decision of the Court of Appeals for the Ninth Circuit that 4 California law creates a liberty interest in parole protected by 5 the Fourteenth Amendment Due Process Clause, which in turn 6 requires fair procedures with respect to the liberty interest. 7 Swarthout v. Cooke, 562 U.S. –, – S.Ct. -, 2011 WL 197627, *2 8 (No. 10-133, Jan. 24, 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).1 12 Swarthout v. Cooke, 2011 WL 197627, *2. 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 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. 6 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, 2011 WL 197627, *2. The Court concluded that the 6 petitioners had received the process that was due: 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, 2011 WL 197627, *3. 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 *3. In his third through sixth claims, Petitioner is alleging 18 that California’s “some evidence” rule was not correctly applied 19 and that the record lacks some evidence to support the BPH’s 20 conclusion that Petitioner presented a danger to the public and 21 to society. 22 to a real possibility of constitutional error or that otherwise 23 would entitle Petitioner to habeas relief because California’s 24 “some evidence” requirement is not a substantive federal 25 requirement. 26 record for “some evidence” to support the denial of parole is not 27 within the scope of this Court’s habeas review under 28 U.S.C. § 28 2254. However, Petitioner does not state facts that point Swarthout, 2011 WL 197627, *3. 7 Review of the 1 Petitioner’s allegations and conclusions also rest in 2 significant part on state statutory, regulatory, and case law. 3 To the extent that Petitioner’s claims rest on state law, 4 they are not cognizable on federal habeas corpus. 5 relief is not available to retry a state issue that does not rise 6 to the level of a federal constitutional violation. 7 Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. 8 McGuire, 502 U.S. 62, 67-68 (1991). 9 application of state law are not cognizable in federal habeas 10 11 corpus. Federal habeas Wilson v. Alleged errors in the Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). Petitioner’s first and second claims concerning the 12 decisions of the state courts likewise fail to state grounds for 13 habeas corpus relief. 14 established federal law in its decision, a state court decision 15 upholding the BPH’s determinations logically would not violate 16 clearly established federal law. 17 habeas review does not extend to the adequacy of the evidentiary 18 basis for the BPH’s findings, a state court’s upholding the 19 findings of the BPH would not constitute an unreasonable 20 determination of the facts. 21 Because the BPH violated no clearly Likewise, because federal The Court notes that Petitioner does not allege that the 22 procedures used for determination of his suitability for parole 23 were deficient because of the absence of either an opportunity to 24 be heard or a statement of reasons for the ultimate decision 25 reached. 26 parole hearing before the BPH, voluntarily declined to make any 27 statements to the BPH, and was represented by an attorney who was 28 present at the hearing and advocated on Petitioner’s behalf. The Court further notes that Petitioner attended the 8 1 Petitioner received a statement of the Board’s reasons for 2 denying parole. 3 It thus appears from the face of the petition and supporting 4 documentation that Petitioner was not denied parole without the 5 requisite due process of law. 6 A petition for habeas corpus should not be dismissed without 7 leave to amend unless it appears that no tenable claim for relief 8 can be pleaded were such leave granted. 9 F.2d 13, 14 (9th Cir. 1971). 10 Jarvis v. Nelson, 440 As Petitioner received all process that was due, Petitioner 11 is unable to state a tenable due process claim. 12 will be recommended that the petition be dismissed without leave 13 to amend for the failure to allege facts that point to a real 14 possibility of constitutional error or that would otherwise 15 entitle Petitioner to habeas relief. Accordingly, it 16 IV. 17 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 18 appealability, an appeal may not be taken to the Court of Appeals 19 from the final order in a habeas proceeding in which the 20 detention complained of arises out of process issued by a state 21 court. 22 U.S. 322, 336 (2003). 23 only if the applicant makes a substantial showing of the denial 24 of a constitutional right. 25 petitioner must show that reasonable jurists could debate whether 26 the petition should have been resolved in a different manner or 27 that the issues presented were adequate to deserve encouragement 28 to proceed further. 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 9 1 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 2 certificate should issue if the Petitioner shows that jurists of 3 reason would find it debatable whether the petition states a 4 valid claim of the denial of a constitutional right and that 5 jurists of reason would find it debatable whether the district 6 court was correct in any procedural ruling. 7 529 U.S. 473, 483-84 (2000). 8 9 A Slack v. McDaniel, In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their 10 merits, and determines whether the resolution was debatable among 11 jurists of reason or wrong. 12 applicant to show more than an absence of frivolity or the 13 existence of mere good faith; however, it is not necessary for an 14 applicant to show that the appeal will succeed. 15 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 16 A district court must issue or deny a certificate of 17 appealability when it enters a final order adverse to the 18 applicant. 19 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 20 debate whether the petition should have been resolved in a 21 different manner. 22 of the denial of a constitutional right. 23 recommended that the Court decline to issue a certificate of 24 appealability. Petitioner has not made a substantial showing Accordingly, it will be 25 V. 26 In summary, the Court concludes that Respondent correctly 27 28 Recommendation contends that no cognizable claim is stated in the petition. Accordingly, it is RECOMMENDED that: 10 1 2 1) Respondent’s motion to dismiss the petition be GRANTED; 2) The petition for writ of habeas corpus be DISMISSED and 3 4 without leave to amend because Petitioner has failed to state a 5 claim cognizable on habeas corpus; and 6 7 3) appealability; and 8 9 The Court DECLINE to issue a certificate of 4) The Clerk be DIRECTED to close the action because this order terminates the proceeding in its entirety. 10 These findings and recommendations are submitted to the 11 United States District Court Judge assigned to the case, pursuant 12 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 13 the Local Rules of Practice for the United States District Court, 14 Eastern District of California. 15 being served with a copy, any party may file written objections 16 with the Court and serve a copy on all parties. 17 should be captioned “Objections to Magistrate Judge’s Findings 18 and Recommendations.” 19 and filed within fourteen (14) days (plus three (3) days if 20 served by mail) after service of the objections. 21 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 22 636 (b)(1)(C). 23 objections within the specified time may waive the right to 24 appeal the District Court’s order. 25 1153 (9th Cir. 1991). 26 IT IS SO ORDERED. 27 Dated: ie14hj Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file May 27, 2011 Martinez v. Ylst, 951 F.2d /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 11
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