-SKO (HC) Bazurto v. Stainer, No. 1:2011cv01647 - Document 12 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's Motion to Dismiss the Petition 9 ; FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus Without Leave to Amend and Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 3/8/2012, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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-SKO (HC) Bazurto v. Stainer Doc. 12 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANTHONY BAZURTO, 11 Petitioner, 12 13 14 v. M. STAINER, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—01647-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 9) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1) AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 17 18 Petitioner is a state prisoner proceeding pro se with a 19 petition for a writ of habeas corpus pursuant to 28 U.S.C. 20 § 2254. 21 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 22 Pending before the Court is the Respondent’s motion to dismiss 23 the petition for failure to state facts that would entitle 24 Petitioner to federal habeas corpus relief. 25 on December 19, 2011, along with a complete transcript of the 26 pertinent state parole proceedings. 27 opposition on January 10, 2012, and Respondent replied on January 28 12, 2012. The matter has been referred to the Magistrate Judge The motion was filed Petitioner filed an Pursuant to Local Rule 230(l), the motion is submitted 1 Dockets.Justia.com 1 on the record without oral argument. 2 I. 3 Because the petition was filed after April 24, 1996, the Proceeding by a Motion to Dismiss 4 effective date of the Antiterrorism and Effective Death Penalty 5 Act of 1996 (AEDPA), the AEDPA applies to the petition. 6 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 7 1484, 1499 (9th Cir. 1997). 8 9 Lindh v. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) allows a district 10 court to dismiss a petition if it “plainly appears from the face 11 of the petition and any exhibits annexed to it that the 12 petitioner is not entitled to relief in the district court....” 13 The Ninth Circuit has allowed respondents to file motions to 14 dismiss pursuant to Rule 4 instead of answers if the motion to 15 dismiss attacks the pleadings by claiming that the petitioner has 16 failed to exhaust state remedies or has violated the state’s 17 procedural rules. 18 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 19 a petition for failure to exhaust state remedies); White v. 20 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 21 review a motion to dismiss for state procedural default); Hillery 22 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 23 Thus, a respondent may file a motion to dismiss after the Court 24 orders the respondent to respond, and the Court should use Rule 4 25 standards to review a motion to dismiss filed before a formal 26 answer. 27 28 See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, upon being directed to respond to the petition by way of answer or motion, Respondent filed the motion to 2 1 dismiss. 2 contained in the pleadings and in copies of the official records 3 of state parole proceedings which have been provided by the 4 parties, and as to which there is no factual dispute. 5 Respondent's motion to dismiss is similar in procedural standing 6 to motions to dismiss on procedural grounds, the Court will 7 review Respondent’s motion to dismiss pursuant to its authority 8 under Rule 4. 9 II. 10 The material facts pertinent to the motion are Because Background Petitioner alleges that he is an inmate of the California 11 Correctional Institution (CCI) in Tehachapi, California, serving 12 a sentence of seventeen years to life for convictions suffered in 13 October 1981 of murder with the use of a firearm and assault with 14 a deadly weapon. 15 his release on parole for seven (7) years by California’s Board 16 of Parole Hearings (BPH) after a hearing held on April 6, 2009, 17 at CCI. 18 (Pet. 1.) Petitioner challenges the denial of On October 19, 2011, the Court dismissed several claims in 19 the petition without leave to amend.1 20 following claims: 1) at the hearing, Petitioner was not permitted 21 to present all relevant documents, including documents showing The petition contains the 22 23 24 25 26 27 28 1 The dismissed claims were that the refusal to permit Petitioner to present documents violated various regulations found in Cal. Code Regs., tit. 15; the application of Cal. Pen. Code § 3041.5, as amended in 2008 by California’s Proposition 9, “Marsy’s Law,” to Petitioner to extend the period between parole suitability hearings to seven (7) years violated the Ex Post Facto Clause because Petitioner was convicted of his commitment offense before the proposition took effect; and the denial of parole violated Petitioner’s right to due process of law because the BPH’s decision lacked the support of “some evidence” that Petitioner still posed a threat to public safety. 3 1 rehabilitative efforts and readiness for parole, in support of 2 his suitability for parole due to prison officials’ confiscation 3 of Petitioner’s personal property on March 18, 2009, which 4 violated his right to due process of law pursuant to the Fifth 5 and Fourteenth Amendments; and 2) the failure to permit 6 Petitioner to present the documents violated Petitioner’s right 7 to equal protection of the laws guaranteed by the Fifth and 8 Fourteenth Amendments. 9 III. Due Process Violation 10 Petitioner contends that when he was not permitted to 11 present the documentation, he was deprived of an opportunity to 12 show that he had followed the recommendations made by the BPH at 13 his previous hearing in 2007, which were to stay disciplinary- 14 free, learn a trade, get therapy as available, earn positive 15 reports, work toward reducing his custody level, and participate 16 in self-help. (Mot., doc. 9-1, 32.) 17 A district court may entertain a petition for a writ of 18 habeas corpus by a person in custody pursuant to the judgment of 19 a state court only on the ground that the custody is in violation 20 of the Constitution, laws, or treaties of the United States. 21 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 22 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 23 16 (2010) (per curiam). 24 Title 28 U.S.C. § 2254 provides in pertinent part: 25 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 26 27 28 4 28 1 2 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 3 5 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 6 Clearly established federal law refers to the holdings, as 4 7 opposed to the dicta, of the decisions of the Supreme Court as of 8 the time of the relevant state court decision. 9 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. 10 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 11 362, 412 (2000). 12 principles set forth by the Supreme Court at the pertinent time. 13 Lockyer v. Andrade, 538 U.S. 71-72. 14 Cullen v. It is thus the governing legal principle or Petitioner contends that he has a liberty interest in 15 release on parole. 16 reasonable the decision of the Court of Appeals for the Ninth 17 Circuit that California law creates a liberty interest in parole 18 protected by the Fourteenth Amendment Due Process Clause, which 19 in turn requires fair procedures with respect to the liberty 20 interest. 21 (2011). 22 The Supreme Court has characterized as Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 However, the procedures required for a parole determination 23 are the minimal requirements set forth in Greenholtz v. Inmates 24 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).2 25 26 27 28 2 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 5 1 Swarthout v. Cooke, 131 S.Ct. 859, 862. 2 rejected inmates’ claims that they were denied a liberty interest 3 because there was an absence of “some evidence” to support the 4 decision to deny parole. 5 6 7 8 9 10 11 12 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 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.) 13 Swarthout, 131 S.Ct. 859, 862. 14 petitioners had received the process that was due as follows: 15 16 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.... 17 18 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 19 Swarthout, 131 S.Ct. at 862. 20 Thus, there is no clearly established federal law that 21 requires that an inmate be permitted to present documentation to 22 23 24 25 26 27 28 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 retrospective 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 parole authorities. 2 documentation to the BPH does not warrant relief in a proceeding 3 pursuant to 28 U.S.C. § 2254. 4 Therefore, the mere inability to present The transcript of the parole hearing shows that Petitioner 5 was present at the hearing, was represented by counsel who had 6 received copies of the documentation considered by the BPH, gave 7 extensive sworn testimony in response to the commissioners’ 8 questions, had an opportunity to correct or clarify the record 9 and to make a personal statement, presented some documents but 10 was unable to present others due to his lack of access to his 11 property, and received a statement of reasons for the BPH’s 12 decision. 13 (Mot., doc. 9-1, 4-5, 7-9, 30, 65-67, 68-74.) Due to a lock-down, Petitioner’s property was in the 14 possession of the authorities. 15 that despite requests to prison authorities, he was not given 16 access to his confiscated property, including letters of support 17 from numerous individuals and sources, residency offers from four 18 different sources, four employment offers, AA chronologies and 19 certificates of participation, Criminon self-help certificates of 20 participation, “youth counseling laudatory chronos” from the Rock 21 Program, and work supervisors’ reports which, according to 22 Petitioner, were above-average with certification recommendations 23 made since the most recent BPH hearing in 2007. 24 Petitioner claimed at the hearing (Id. at 66.) The Commissioners were informed that some letters of support 25 were unavailable to Petitioner, but Commissioner Doyle stated 26 that the important thing was that Petitioner had a job, two 27 places he could live, family support, and rehabilitation 28 services. (Id. at 31.) The BPH had records from Pelican Bay 7 1 State Prison from 2007 reflecting Petitioner’s participation in 2 AA; he had not participated since his arrival at CCI in August 3 2008 because AA was not available at CCI. 4 BPH had a positive chronology concerning Petitioner’s 5 participation in work at PIA-Optical. 6 before the BPH showed that Petitioner was certified as a washroom 7 technician in 2006. 8 completed another vocational program, but he represented that he 9 had certification recommendations from the Pelican Bay State (Id. at 33, 39.) (Id. at 39.) The The records Petitioner admitted that he had not 10 Prison Optical Lab that he was unable to produce. 11 36.) 12 Corps, but there was no such record in Petitioner’s central file. 13 (Id. at 36.) 14 (Id. at 35- Petitioner testified that he had received a GED in the Job In view of the opportunities Petitioner and his counsel had 15 to review the documentation relied upon and to present 16 particularized considerations demonstrating why Petitioner was an 17 appropriate candidate for parole, the record precludes a 18 conclusion that Petitioner was effectively deprived of the 19 processes required by due process of law. 20 Further, it does not appear from the record that the absence 21 of Petitioner’s property could have prejudiced him. 22 reasons for the BPH’s decision to deny parole for seven years 23 were the commitment offense, Petitioner’s unstable social history 24 involving gang activity, a history of twenty-seven (27) 25 disciplinary adjudications predating 1992 that were mostly for 26 violent conduct, a lack of vocations, the opposition of local law 27 enforcement, Petitioner’s mental state and the accompanying 28 moderate risk of violence he posed if released, impulsiveness, 8 The primary 1 and lack of genuine remorse. 2 certificate as a washer technician, being recognized for his work 3 in the PIA Optical Lab, and completing Criminon Programs and 4 classes in 2003 and 2005. 5 He was commended for receiving a (Id. at 68-74.) Generally, a failure to meet a prison guideline regarding a 6 disciplinary hearing does not alone constitute a denial of due 7 process. 8 1989). 9 that several courts have concluded that to establish a denial of See, Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. In the absence of controlling authority, the Court notes 10 due process of law, prejudice is generally required. 11 v. Abrahamson, 507 U.S. 619, 637 (1993); see also Tien v. Sisto, 12 Civ. No. 2:07-cv-02436-VAP (HC), 2010 WL 1236308, at *4 (E.D.Cal. 13 Mar. 26, 2010) (“While neither the United States Supreme Court or 14 the Ninth Circuit Court of Appeals has spoken on the issue, 15 numerous federal Courts of Appeals, as well as courts in this 16 district, have held that a prisoner must show prejudice to state 17 a habeas claim based on an alleged due process violation in a 18 disciplinary proceeding.”) (citing Pilgrim v. Luther, 571 F.3d 19 201, 206 (2d Cir. 2009); Howard v. United States Bureau of 20 Prisons, 487 F.3d 808, 813 (10th Cir. 2007); Piggie v. Cotton, 21 342 F.3d 660, 666 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48, 22 53 (3d Cir. 1992); Poon v. Carey, No. Civ. S-05-0801 JAM EFB P, 23 2008 WL 5381964, at *5 (E.D.Cal. Dec. 22, 2008); Gonzalez v. 24 Clark, No. 1:07-CV-0220 AWI JMD HC, 2008 WL 4601495, at *4 25 (E.D.Cal. Oct. 15, 2008)). 26 See, Brecht In view of the undisputed record of the parole proceedings, 27 it cannot be concluded that any inability to produce documents 28 had an injurious effect on the BPH’s decision. 9 It is concluded 1 Petitioner has not alleged facts showing a denial of due process, 2 and thus he has not alleged facts that would entitle him to 3 relief. The petition should be dismissed. 4 A petition for habeas corpus should not be dismissed without 5 leave to amend unless it appears that no tenable claim for relief 6 can be pleaded were such leave granted. 7 F.2d 13, 14 (9th Cir. 1971). 8 parole proceedings is before the Court, it does not appear that a 9 tenable due process claim could be pleaded if leave to amend were 10 11 Jarvis v. Nelson, 440 Because the entire record of the granted. Accordingly, Respondent’s motion to dismiss this claim 12 should be granted, and Petitioner’s due process claim should be 13 dismissed without leave to amend. 14 IV. 15 Petitioner contends that the failure to permit him to 16 present the documents violated his right to equal protection of 17 the laws guaranteed by the Fifth and Fourteenth Amendments. 18 Equal Protection Prisoners are protected under the Equal Protection Clause of 19 the Fourteenth Amendment from invidious discrimination based on 20 race, religion, or membership in a protected class subject to 21 restrictions and limitations necessitated by legitimate 22 penological interests. 23 (1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). 24 Protection Clause essentially directs that all persons similarly 25 situated should be treated alike. 26 Cleburne Living Center, 473 U.S. 432, 439 (1985). 27 equal protection are shown when a respondent intentionally 28 discriminates against a petitioner based on membership in a Wolff v. McDonnell, 418 U.S. 539, 556 10 The Equal City of Cleburne, Texas v. Violations of 1 protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686 2 (9th Cir. 2001), or when a respondent intentionally treats a 3 member of an identifiable class differently from other similarly 4 situated individuals without a rational basis, or a rational 5 relationship to a legitimate state purpose, for the difference in 6 treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 7 (2000). 8 9 Here, Petitioner has not alleged facts showing that he is a member of a protected class, that membership in a protected class 10 was the basis of any alleged discrimination, or that there was 11 any intentional discrimination or unequal treatment. 12 reflects that there was a lock-down at the prison that 13 precipitated the removal of property from Petitioner’s cell; 14 there is no record basis for a finding of any intentional 15 discrimination or unequal treatment. 16 that parole consideration is discretionary and does not provide 17 the basis of a fundamental right. 18 1300, 1301-02 (9th Cir. 1989). 19 The record The Court further notes Mayner v. Callahan, 873 F.2d In view of Petitioner’s failure to allege facts showing the 20 requisite elements of an equal protection claim, the Court 21 concludes that Petitioner has not shown that he is entitled to 22 habeas relief. 23 of intentional discrimination or unequal treatment, Petitioner 24 could not state a tenable equal protection claim if leave to 25 amend were granted. 26 Further, because the record forecloses a finding Accordingly, Respondent’s motion to dismiss this claim 27 should be granted, and 28 should be dismissed without leave to amend. Petitioner’s equal protection claim 11 1 2 In summary, Respondent’s motion to dismiss the petition should be granted. 3 V. 4 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 5 appealability, an appeal may not be taken to the Court of Appeals 6 from the final order in a habeas proceeding in which the 7 detention complained of arises out of process issued by a state 8 court. 9 U.S. 322, 336 (2003). 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 10 only if the applicant makes a substantial showing of the denial 11 of a constitutional right. 12 petitioner must show that reasonable jurists could debate whether 13 the petition should have been resolved in a different manner or 14 that the issues presented were adequate to deserve encouragement 15 to proceed further. 16 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 17 certificate should issue if the Petitioner shows that jurists of 18 reason would find it debatable whether the petition states a 19 valid claim of the denial of a constitutional right and that 20 jurists of reason would find it debatable whether the district 21 court was correct in any procedural ruling. 22 529 U.S. 473, 483-84 (2000). 23 § 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 conducts an overview of 24 the claims in the habeas petition, generally assesses their 25 merits, and determines whether the resolution was debatable among 26 jurists of reason or wrong. 27 applicant to show more than an absence of frivolity or the 28 existence of mere good faith; however, it is not necessary for an Id. 12 It is necessary for an 1 applicant to show that the appeal will succeed. 2 Cockrell, 537 U.S. at 338. Miller-El v. 3 A district court must issue or deny a certificate of 4 appealability when it enters a final order adverse to the 5 applicant. 6 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 7 debate whether the petition should have been resolved in a 8 different manner. 9 of the denial of a constitutional right. 10 11 Petitioner has not made a substantial showing Accordingly, the Court should decline to issue a certificate of appealability. 12 VI. 13 Accordingly, it is RECOMMENDED that: 14 1) Respondent’s motion to dismiss the petition be GRANTED; 15 16 17 18 19 Recommendations and 2) The petition for writ of habeas corpus be DISMISSED without leave to amend; and 3) The Court DECLINE to issue a certificate of appealability; and 20 4) The Clerk be DIRECTED to close the case. 21 These findings and recommendations are submitted to the 22 United States District Court Judge assigned to the case, pursuant 23 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 24 the Local Rules of Practice for the United States District Court, 25 Eastern District of California. 26 being served with a copy, any party may file written objections 27 with the Court and serve a copy on all parties. 28 should be captioned “Objections to Magistrate Judge’s Findings Within thirty (30) days after 13 Such a document 1 and Recommendations.” 2 and filed within fourteen (14) days (plus three (3) days if 3 served by mail) after service of the objections. 4 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 5 § 636 (b)(1)(C). 6 objections within the specified time may waive the right to 7 appeal the District Court’s order. 8 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 9 10 IT IS SO ORDERED. 11 Dated: ie14hj March 8, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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