-SKO (HC)Padilla v. Hartley, No. 1:2011cv00244 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Failure to State a Cognizable Claim and to Decline to Issue a Certificate of Appealability; Objections Due within Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 2/23/2011. Referred to Judge Oliver W. Wanger. Objections to F&R due by 3/29/2011. (Sant Agata, S)
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-SKO (HC)Padilla v. Hartley Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 MARIO PADILLA, 11 Petitioner, 12 v. 13 JAMES D. HARTLEY, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00244–OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS 16 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 the petition, which was filed on February 14, 23 2011. 24 I. Screening the Petition 25 Rule 4 of the Rules Governing § 2254 Cases in the United 26 States District Courts (Habeas Rules) requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. 28 1 Dockets.Justia.com 1 The Court must summarily dismiss a petition "[i]f it plainly 2 appears from the petition and any attached exhibits that the 3 petitioner is not entitled to relief in the district court....” 4 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 5 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 6 1990). 7 grounds of relief available to the Petitioner; 2) state the facts 8 supporting each ground; and 3) state the relief requested. 9 Notice pleading is not sufficient; rather, the petition must Habeas Rule 2(c) requires that a petition 1) specify all 10 state facts that point to a real possibility of constitutional 11 error. 12 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 13 Allison, 431 U.S. 63, 75 n.7 (1977)). 14 that are vague, conclusory, or palpably incredible are subject to 15 summary dismissal. 16 Cir. 1990). 17 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 18 corpus either on its own motion under Habeas Rule 4, pursuant to 19 the respondent's motion to dismiss, or after an answer to the 20 petition has been filed. 21 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 22 (9th Cir. 2001). 23 Advisory Committee Notes to Habeas Rule Here, Petitioner alleges that he is an inmate of Avenal 24 State Prison. 25 reflects that Petitioner is serving a sentence for second degree 26 murder imposed in the Los Angeles Superior Court in 1984 in case 27 number A700672. 28 of California’s Board of Parole Hearings (BPH) made after a (Pet. 1.) A transcript attached to the petition (Pet. 20.) Petitioner challenges the decision 2 1 hearing held on January 28, 2009, at which Petitioner was found 2 unsuitable for parole. (Pet. 8, 18.) 3 It appears from Petitioner’s allegations and the transcript 4 of the hearing that is attached to the petition that he attended 5 the parole hearing held before the Board on January 28, 2009 6 (pet. 18, 20-21); spoke to the Board (pet. 20-67, 74); and was 7 represented by counsel, who also attended the hearing, examined 8 Petitioner, and argued on Petitioner’s behalf (pet. 26-30, 39-43, 9 67-73). Further, at the conclusion of the hearing, the BPH 10 stated in Petitioner’s presence its reasons for finding 11 Petitioner unsuitable for parole, explaining that Petitioner 12 presented a risk of danger to society or a threat to the public 13 safety if released. 14 (Pet. 75-80.) Petitioner asks this Court to review whether there was some 15 evidence to support the conclusion that Petitioner was unsuitable 16 for parole because he posed a current threat of danger to the 17 public if released. 18 process of law was violated by the BPH’s reliance on the 19 psychological evidence, Petitioner’s history of disciplinary 20 offenses in prison, the nature of Petitioner’s commitment 21 offense, and Petitioner’s parole plans. Petitioner argues that his right to due (Pet. 8-16.) 22 II. 23 Because the petition was filed after April 24, 1996, the Failure to Allege a Claim Cognizable on Habeas Corpus 24 effective date of the Antiterrorism and Effective Death Penalty 25 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 26 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 27 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 28 A district court may entertain a petition for a writ of 3 Lindh 1 habeas corpus by a person in custody pursuant to the judgment of 2 a state court only on the ground that the custody is in violation 3 of the Constitution, laws, or treaties of the United States. 28 4 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 5 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 6 16 (2010) (per curiam). 7 The Supreme Court has characterized as reasonable the 8 decision of the Court of Appeals for the Ninth Circuit that 9 California law creates a liberty interest in parole protected by 10 the Fourteenth Amendment Due Process Clause, which in turn 11 requires fair procedures with respect to the liberty interest. 12 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 13 However, the procedures required for a parole determination 14 are the minimal requirements set forth in Greenholtz v. Inmates 15 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 16 Swarthout v. Cooke, 131 S.Ct. 859, 862. 17 rejected inmates’ claims that they were denied a liberty interest 18 because there was an absence of “some evidence” to support the 19 decision to deny parole. In Swarthout, the Court The Court stated: 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 3 4 5 6 7 8 9 10 11 12 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.) Swarthout, 131 S.Ct. 859, 862. The Court concluded that the petitioners had received the process that was due as follows: 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.... 13 14 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 15 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 16 noted that California’s “some evidence” rule is not a substantive 17 federal requirement, and correct application of California’s 18 “some evidence” standard is not required by the federal Due 19 Process Clause. Id. at 862-63. 20 Here, Petitioner asks this Court to engage in the very type 21 of analysis foreclosed by Swarthout. Petitioner does not state 22 facts that point to a real possibility of constitutional error or 23 that otherwise would entitle Petitioner to habeas relief because 24 California’s “some evidence” requirement is not a substantive 25 federal requirement. Review of the record for “some evidence” to 26 support the denial of parole is not within the scope of this 27 Court’s habeas review under 28 U.S.C. § 2254. 28 5 1 Petitioner cites state law concerning the appropriate weight 2 to be given to evidence. 3 or claims rest on state law, it is not cognizable on federal 4 habeas corpus. 5 state issue that does not rise to the level of a federal 6 constitutional violation. 7 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 8 (1991). 9 cognizable in federal habeas corpus. 10 11 To the extent that Petitioner’s claim Federal habeas relief is not available to retry a Wilson v. Corcoran, 562 U.S. — , 131 Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). The Court notes that Petitioner does not allege that the 12 procedures used for determination of his suitability for parole 13 were deficient because of the absence of an opportunity to be 14 heard or a statement of reasons for the ultimate decision 15 reached. 16 parole hearing before the Board, made a statement to the Board, 17 and was represented by counsel who was present at the hearing and 18 argued on Petitioner’s behalf. 19 of the Board’s reasons for recommending parole. 20 from the face of the petition that Petitioner was not denied 21 parole without the requisite due process of law. The Court further notes that Petitioner attended the Petitioner received a statement It thus appears 22 A petition for habeas corpus should not be dismissed without 23 leave to amend unless it appears that no tenable claim for relief 24 can be pleaded were such leave granted. 25 F.2d 13, 14 (9th Cir. 1971). Jarvis v. Nelson, 440 26 Because it appears from the undisputed facts reflected in 27 the record of the proceedings that is attached to the petition 28 that Petitioner received the minimal process that was due him, 6 1 2 Petitioner could not state a tenable due process claim. Accordingly, it will be recommended that the petition be 3 dismissed without leave to amend for the failure to allege facts 4 that point to a real possibility of constitutional error or that 5 would otherwise entitle Petitioner to habeas relief. 6 III. 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 conducts an overview of the claims in the habeas petition, 27 generally assesses their merits, and determines whether the 28 resolution was debatable among jurists of reason or wrong. 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 7 Id. 1 It is necessary for an applicant to show more than an absence of 2 frivolity or the existence of mere good faith; however, it is not 3 necessary for an applicant to show that the appeal will succeed. 4 Miller-El v. Cockrell, 537 U.S. at 338. 5 A district court must issue or deny a certificate of 6 appealability when it enters a final order adverse to the 7 applicant. 8 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a 10 different manner. 11 of the denial of a constitutional right. 12 should decline to issue a certificate of appealability. Petitioner has not made a substantial showing 13 IV. 14 Accordingly, it is RECOMMENDED that: 15 1) Accordingly, the Court Recommendation The petition for writ of habeas corpus be DISMISSED 16 without leave to amend because Petitioner has failed to state a 17 claim cognizable on habeas corpus; and 18 19 20 21 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close the action because this order terminates the proceeding in its entirety. 22 These findings and recommendations are submitted to the 23 United States District Court Judge assigned to the case, pursuant 24 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 25 the Local Rules of Practice for the United States District Court, 26 Eastern District of California. 27 being served with a copy, any party may file written objections 28 with the Court and serve a copy on all parties. Within thirty (30) days after 8 Such a document 1 should be captioned “Objections to Magistrate Judge’s Findings 2 and Recommendations.” 3 and filed within fourteen (14) days (plus three (3) days if 4 served by mail) after service of the objections. 5 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 6 636 (b)(1)(C). 7 objections within the specified time may waive the right to 8 appeal the District Court’s order. 9 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 10 11 IT IS SO ORDERED. 12 Dated: ie14hj February 23, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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