Tkac v. Allison
Filing
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FINDINGS and RECOMMENDATION Regarding 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Dennis L. Beck on 11/1/11. Referred to Judge Ishii. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEVEN TKAC,
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1:11-cv-00384-AWI-DLB (HC)
Petitioner,
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FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS
v.
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K. ALLISON,
[Doc. 1]
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Respondent.
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/
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254.
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On March 4, 2011, Petitioner filed the instant petition for writ of habeas corpus.
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Petitioner challenges the June 2, 2009, decision of the California Board of Parole Hearings.
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Petitioner claims the California courts and Board of Parole unreasonably determined that there
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was some evidence he posed a current risk of danger to the public if released.
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A.
Failure to State a Cognizable Ground for Relief
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Because California’s statutory parole scheme guarantees that prisoners will not be denied
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parole absent some evidence of present dangerousness, the Ninth Circuit Court of Appeals held
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that California law creates a liberty interest in parole that may be enforced under the Due Process
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Clause. Hayward v. Marshall, 602 F.3d 546, 561-563 (9th Cir. 2010); Pearson v. Muntz, 606
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F.3d 606, 608-609 (9th Cir. 2010); Cooke v. Solis, 606 F.3d 1206, 1213 (2010), rev’d, Swarthout
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v. Cooke, ___ U.S.___, 131 S.Ct. 859 (2011). The Ninth Circuit instructed reviewing federal
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district courts to determine whether California’s application of California’s “some evidence” rule
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was unreasonable or was based on an unreasonable determination of the facts in light of the
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evidence. Hayward v. Marshall. 603 F.3d at 563; Pearson v. Muntz, 606 F.3d at 608.
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On January 24, 2011, the Supreme Court issued a per curiam opinion in Swarthout v.
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Cooke, ___ U.S.___, 131 S.Ct. 859 (2011). In Swarthout, the Supreme Court held that “the
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responsibility for assuring that the constitutionally adequate procedures governing California’s
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parole system are properly applied rests with California courts, and is no part of the Ninth
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Circuit’s business.” Id. at 863. The federal habeas court’s inquiry into whether a prisoner denied
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parole received due process is limited to determining whether the prisoner “was allowed an
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opportunity to be heard and was provided a statement of the reasons why parole was denied.” Id.
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at 862, citing, Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16
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(1979). Review of the instant case reveals Petitioner was present at his parole hearing, was given
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an opportunity to be heard, and was provided a statement of reasons for the parole board’s
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decision. (See Pet. Ex. A.) Per the Supreme Court, this is “the beginning and the end of the
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federal habeas courts’ inquiry into whether [the prisoner] received due process.” Swarthout, 131
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S.Ct. at 862. “The Constitution does not require more [process].” Greenholtz, 442 U.S. at 16.
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Therefore, the instant petition does not present cognizable claims for relief and should be denied.
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RECOMMENDATION
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Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas
corpus be DENIED.
This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii,
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United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B)
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and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District
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of California.
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Within thirty (30) days after date of service of this Findings and Recommendation, any
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party may file written objections with the Court and serve a copy on all parties. Such a document
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should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies
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to the Objections shall be served and filed within fourteen (14) days after date of service of the
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Objections. The Finding and Recommendation will then be submitted to the District Court for
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review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
3b142a
November 1, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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