-SKO Venegas v. Dawson et al, No. 1:2011cv00765 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Petition for Writ of Habeas Corpus be DISMISSED without leave to amend; DECLINE to issue a Certificate of Appealability; Clerk DIRECTED to close the action because an order of dismissal would terminate the proceedings; re 1 Petition for Writ of Habeas Corpus filed by Samual Venegas ; referred to Judge O'Neill Objections to F&R due by 7/5/2011, signed by Magistrate Judge Sheila K. Oberto on 05/27/2011. (Martin, S)
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-SKO Venegas v. Dawson et al Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 SAMUEL VENEGAS, 11 Petitioner, 12 v. 13 NICK DAWSON, et al., 14 Respondents. 15 ) ) ) ) ) ) ) ) ) ) ) ) 16 1:11-cv—00765–LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO 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 before the Court is the petition, which was filed on May 11, 23 2011. Pending 24 I. 25 Rule 4 of the Rules Governing § 2254 Cases in the United Screening 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). 22 Advisory Committee Notes to Habeas Rule Here, Petitioner alleges that he is an inmate of the Avenal 23 State Prison at Avenal, California, serving a sentence of seven 24 (7) years to life imposed by the Los Angeles County Superior 25 Court for Petitioner’s conviction in November 1979 of conspiracy 26 to commit murder, first degree murder, discharge of a firearm 27 into an inhabited dwelling, and assault with a deadly weapon. 28 (Pet. 1.) Petitioner challenges the decision of the California 2 1 Board of Parole Hearings (BPH) made after a hearing held on May 2 6, 2009, finding Petitioner unsuitable for parole. 3 39.) 4 courts that upheld the BPH’s decision. (Pet. 4, 7- Petitioner also challenges the decisions of the state (Pet. 7-8, 18-19.) 5 It appears from the allegations of the petition and the 6 transcript of the hearing of May 6, 2009, submitted by Petitioner 7 with his petition, that Petitioner reviewed his central file in 8 advance of the hearing, attended the hearing, discussed numerous 9 suitability factors with the commissioners of the BPH and 10 testified under oath, and made a personal statement in favor of 11 parole. 12 appeared at the hearing, acknowledged receipt of full 13 documentation in advance of the hearing, and advocated on 14 Petitioner’s behalf, including making a statement to the BPH in 15 favor of parole. 16 (Pet. 46, 48, 53-98, 105-08.) Further, an attorney (Pet. 46, 48, 52-53, 98-105.) The attachments to the petition further demonstrate that 17 Petitioner was present when the BPH gave a statement of the 18 reasons for the BPH’s decision to deny parole for three years, 19 which was based on the conclusion that Petitioner posed a present 20 risk of danger to society or a threat to public safety if 21 released. 22 which included a gang action involving multiple victims in 23 separate incidents, Petitioner’s history of criminality and gang 24 leadership, and Petitioner’s minimization of his conduct. 25 109-16.) 26 (Pet. 109.) The BPH relied on the commitment offense, (Pet. Accordingly, the Court notes that the undisputed record of 27 the pertinent proceedings of the BPH shows that Petitioner had 28 access to information before the hearing, attended the hearing 3 1 and had an opportunity to be heard, and received a statement of 2 reasons for the decision. 3 Petitioner asks this Court to review whether there was some 4 evidence to support the conclusion that Petitioner was unsuitable 5 for parole because he posed a current threat of danger to the 6 public if released. 7 the following claims in the petition: 8 Petitioner posed a danger, the BPH improperly relied on 9 Petitioner’s having participated in two murders that were never 10 charged or proved (pet. 8); 2) the BPH improperly relied on the 11 immutable facts of Petitioner’s thirty-one-year-old crime and a 12 fourteen-year-old rule violation report (pet. 8, 17); 3) the 13 evidence actually demonstrated Petitioner’s suitability for 14 parole (pet. 9, 11-12); 4) the trial court illegally and 15 unreasonably found that Petitioner was responsible for three 16 people being killed (pet. 10); 5) the BPH improperly relied on a 17 single 2007 psychology report that indicated that Petitioner 18 presented a high risk of danger to society (pet. 14-17); and 6) 19 state law created a liberty interest in parole that supported 20 Petitioner’s reasonable expectation of parole, and Petitioner’s 21 liberty interest was infringed by the BPH’s decision (pet. 21- 22 28). (Pet. 14, 18-19, 26-39.) Petitioner raises 1) in concluding that 23 II. 24 Because the petition was filed after April 24, 1996, the Failure to Allege a Claim Cognizable on Habeas Corpus 25 effective date of the Antiterrorism and Effective Death Penalty 26 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 27 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 28 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 4 Lindh 1 A district court may entertain a petition for a writ of 2 habeas corpus by a person in custody pursuant to the judgment of 3 a state court only on the ground that the custody is in violation 4 of the Constitution, laws, or treaties of the United States. 5 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 6 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 7 16 (2010) (per curiam). 8 9 28 The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that 10 California law creates a liberty interest in parole protected by 11 the Fourteenth Amendment Due Process Clause, which in turn 12 requires fair procedures with respect to the liberty interest. 13 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 14 However, the procedures required for a parole determination 15 are the minimal requirements set forth in Greenholtz v. Inmates 16 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 17 Swarthout v. Cooke, 131 S.Ct. 859, 862. 18 rejected inmates’ claims that they were denied a liberty interest 19 because there was an absence of “some evidence” to support the In Swarthout, the Court 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. 5 1 2 3 4 5 6 7 8 9 decision to deny parole. 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 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.) 10 Swarthout, 131 S.Ct. 859, 862. 11 petitioners had received the process that was due as follows: 12 13 The Court concluded that the 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.... 14 15 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 16 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 17 noted that California’s “some evidence” rule is not a substantive 18 federal requirement, and correct application of California’s 19 “some evidence” standard is not required by the federal Due 20 Process Clause. Id. at 862-63. 21 Petitioner asks this Court to engage in the very type of 22 analysis foreclosed by Swarthout. Petitioner does not state 23 facts that point to a real possibility of constitutional error or 24 that otherwise would entitle Petitioner to habeas relief because 25 California’s “some evidence” requirement is not a substantive 26 federal requirement. Review of the record for “some evidence” to 27 support the denial of parole is not within the scope of this 28 6 1 2 Court’s habeas review under 28 U.S.C. § 2254. Although Petitioner may not be incorrect in claiming that he 3 has a liberty interest in parole under the terms of California 4 law, the Court in Swarthout determined that only minimal due 5 process is due to one with Petitioner’s alleged expectation of 6 parole. 7 Petitioner received all process that was due. Further, Petitioner cites state law concerning the 8 entitlement of a prisoner to parole and the appropriate weight to 9 be given to evidence pertinent to parole suitability. To the 10 extent that Petitioner’s claim or claims rest on state law, they 11 are not cognizable on federal habeas corpus. 12 relief is not available to retry a state issue that does not rise 13 to the level of a federal constitutional violation. 14 Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. 15 McGuire, 502 U.S. 62, 67-68 (1991). 16 application of state law are not cognizable in federal habeas 17 corpus. Federal habeas Wilson v. Alleged errors in the Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 18 A petition for habeas corpus should not be dismissed without 19 leave to amend unless it appears that no tenable claim for relief 20 can be pleaded were such leave granted. 21 F.2d 13, 14 (9th Cir. 1971). 22 Jarvis v. Nelson, 440 The Court notes that Petitioner does not allege that the 23 procedures used for determination of his suitability for parole 24 were deficient because of the absence of an opportunity to be 25 heard or a statement of reasons for the ultimate decision 26 reached. 27 recitations and assertions that appear in the transcript of the 28 parole proceedings and other documentation attached to the Further, Petitioner does not contradict the factual 7 1 petition. 2 the transcript that Petitioner received documentation in advance 3 of the hearing, attended the parole suitability hearing, made 4 statements to the BPH, and received a statement of reasons for 5 the decision of the BPH. 6 establish that he had an opportunity to be heard and a statement 7 of reasons for the decisions in question. 8 appear that Petitioner could state a tenable due process claim. 9 Accordingly, the Court will recommend that the petition be It is clear from the allegations in the petition and Thus, Petitioner’s own allegations It therefore does not 10 dismissed without leave to amend because Petitioner’s claims 11 concerning the adequacy of the evidence to support the BPH’s 12 decision and the propriety of the BPH’s weighing of the evidence 13 do not state a violation of due process of law or other basis for 14 habeas relief. 15 real possibility of constitutional error or that would otherwise 16 entitle Petitioner to habeas relief.2 Petitioner has not alleged facts that point to a 17 III. 18 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 19 appealability, an appeal may not be taken to the Court of Appeals 20 from the final order in a habeas proceeding in which the 21 detention complained of arises out of process issued by a state 22 court. 23 U.S. 322, 336 (2003). 24 only if the applicant makes a substantial showing of the denial 25 of a constitutional right. 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 26 27 28 2 Because Petitioner’s claim is not cognizable, the Court has not addressed whether Petitioner has named a proper respondent with day-to-day custody and control of Petitioner. 8 1 petitioner must show that reasonable jurists could debate whether 2 the petition should have been resolved in a different manner or 3 that the issues presented were adequate to deserve encouragement 4 to proceed further. 5 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 6 certificate should issue if the Petitioner shows that jurists of 7 reason would find it debatable whether the petition states a 8 valid claim of the denial of a constitutional right and that 9 jurists of reason would find it debatable whether the district Miller-El v. Cockrell, 537 U.S. at 336 A 10 court was correct in any procedural ruling. 11 529 U.S. 473, 483-84 (2000). 12 conducts an overview of the claims in the habeas petition, 13 generally assesses their merits, and determines whether the 14 resolution was debatable among jurists of reason or wrong. 15 It is necessary for an applicant to show more than an absence of 16 frivolity or the existence of mere good faith; however, it is not 17 necessary for an applicant to show that the appeal will succeed. 18 Miller-El v. Cockrell, 537 U.S. at 338. Slack v. McDaniel, In determining this issue, a court 19 A district court must issue or deny a certificate of 20 appealability when it enters a final order adverse to the 21 applicant. Id. 22 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 23 debate whether the petition should have been resolved in a 24 different manner. 25 of the denial of a constitutional right. 26 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline 27 to issue a certificate of appealability. 28 /// 9 1 IV. 2 Accordingly, it is RECOMMENDED that: 3 1) Recommendation The petition for writ of habeas corpus be DISMISSED 4 without leave to amend because Petitioner has failed to state a 5 due process claim cognizable in a proceeding pursuant to 28 6 U.S.C. § 2254; and 7 8 2) The Court DECLINE to issue a certificate of appealability; and 9 3) The Clerk be DIRECTED to close the action because an 10 order of dismissal would terminate the proceeding in its 11 entirety. 12 These findings and recommendations are submitted to the 13 United States District Court Judge assigned to the case, pursuant 14 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 15 the Local Rules of Practice for the United States District Court, 16 Eastern District of California. 17 being served with a copy, any party may file written objections 18 with the Court and serve a copy on all parties. 19 should be captioned “Objections to Magistrate Judge’s Findings 20 and Recommendations.” 21 and filed within fourteen (14) days (plus three (3) days if 22 served by mail) after service of the objections. 23 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 24 636 (b)(1)(C). 25 objections within the specified time may waive the right to 26 /// 27 /// 28 /// 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 10 1 appeal the District Court’s order. 2 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 3 4 IT IS SO ORDERED. 5 Dated: ie14hj May 27, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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