(HC) Hoban v. Katabich, No. 1:2012cv01269 - Document 9 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition Without Leave to Amend for Failure to State a Cognizable Claim, signed by Magistrate Judge Michael J. Seng on 9/14/2012, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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(HC) Hoban v. Katabich Doc. 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 TIMOTHY HOBAN, ) ) Petitioner, ) ) v. ) ) ) JOHN N. KATABICH, ) ) Respondent. ) ) ________________________________) 1:12-cv-01269 AWI MJS HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254. 19 I. DISCUSSION 20 A. Procedural Grounds for Summary Dismissal 21 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 22 23 If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. 24 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition 25 for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s 26 motion to dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 27 F.3d 1039 (9th Cir. 2001). Allegations in a petition that are vague, conclusory, or palpably 28 incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th U .S. D istrict C ourt E. D . C alifornia -1Dockets.Justia.com 1 Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend 2 unless it appears that no tenable claim for relief can be pleaded were such leave granted. 3 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 4 B. Factual Summary 5 On July 24, 2012, Petitioner filed the instant petition for writ of habeas corpus. (Pet., 6 ECF No. 1.) Petitioner challenges the decision of the Board of Parole Hearings (“Board”) 7 finding him unsuitable for parole on February 17, 2011. Petitioner claims the California courts 8 unreasonably determined that there was some evidence he posed a current risk of danger to 9 the public if released. 10 C. Federal Review of State Parole Decisions 11 Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism 12 and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 13 Lindh v. Murphy, 521 U.S. 320, 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); Furman v. 14 Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 15 A district court may entertain a petition for a writ of habeas corpus by a person in 16 custody pursuant to the judgment of a state court only on the ground that the custody is in 17 violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 18 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7, 120 S. Ct. 1495, 146 L. Ed. 2d 389 19 (2000); Wilson v. Corcoran, 131 S.Ct. 13, 16, 178 L. Ed. 2d 276 (2010) (per curiam). 20 The Supreme Court has characterized as reasonable the decision of the Court of 21 Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected 22 by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures 23 with respect to the liberty interest. Swarthout v. Cooke, 131 S.Ct. 859, 861-62, 178 L. Ed. 2d 24 732 (2011). 25 However, the procedures required for a parole determination are the minimal 26 requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 27 28 U .S. D istrict C ourt E. D . C alifornia -2- 1 U.S. 1, 12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979).1 Swarthout, 131 S.Ct. at 862. In 2 Swarthout, the Court rejected inmates' claims that they were denied a liberty interest because 3 there was an absence of "some evidence" to support the decision to deny parole. The Court 4 stated: 5 6 7 8 9 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. at 862. The Court concluded that the petitioners had received the 11 process that was due as follows: 12 13 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 noted that California's "some 17 evidence" rule is not a substantive federal requirement, and correct application of California's 18 "some evidence" standard is not required by the Federal Due Process Clause. Id. at 862-63. 19 Here, Petitioner argues that the Board improperly relied on evidence relating to 20 Petitioner's crime. In so arguing, Petitioner asks this Court to engage in the very type of 21 analysis foreclosed by Swarthout. In this regard, Petitioner does not state facts that point to 22 a real possibility of constitutional error or that otherwise would entitle Petitioner to habeas relief 23 because California's "some evidence" requirement is not a substantive federal requirement. 24 25 26 27 28 1 In Greenholtz, the Court held that a form al hearing is not required with respect to a decision concerning granting or denying discretionary parole; it is sufficient to perm it the inm ate to have an opportunity to be heard and to be given a statem ent of reasons for the decision m ade. Id. at 16. The decision m aker is not required to state the evidence relied upon in com ing to the decision. Id. at 15-16. In Greenholtz, the Court held that due process was satisfied where the inm ate received a statem ent 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 dem onstrating why he was an appropriate candidate for parole. Id. at 15. U .S. D istrict C ourt E. D . C alifornia -3- 1 Review of the record for "some evidence" to support the denial of parole is not within the 2 scope of this Court's habeas review under 28 U.S.C. § 2254. The Court concludes that 3 Petitioner's claim concerning the evidence supporting the unsuitability finding should be 4 dismissed. 5 A petition for habeas corpus should not be dismissed without leave to amend unless 6 it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis, 440 7 F.2d at 14. 8 Although Petitioner asserts that his right to due process of law was violated by the 9 Board's decision, Petitioner does not set forth any specific facts concerning his attendance at 10 the parole hearing, his opportunity to be heard, or his receipt of a statement of reasons for the 11 parole decision. Petitioner has not alleged facts pointing to a real possibility of a violation of 12 the minimal requirements of due process set forth in Greenholtz, 442 U.S. 1. The Court concludes that it would be futile to grant Petitioner leave to amend and 13 14 orders that the claim be dismissed. 15 II. CONCLUSION 16 A petition for habeas corpus should not be dismissed without leave to amend unless 17 it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis, 440 18 F.2d at 14. 19 Although Petitioner asserts that his right to due process of law was violated by the 20 Board's decision, Petitioner does not set forth any specific facts concerning his attendance at 21 the parole hearing, his opportunity to be heard, or his receipt of a statement of reasons for the 22 parole decision. Petitioner has not alleged facts pointing to a real possibility of a violation of 23 the minimal requirements of due process set forth in Greenholtz, 442 U.S. 1. Further, 24 Petitioner's other claims regarding the hearing are either without merit or not properly 25 presented before this court. The Court concludes that it would be futile to grant Petitioner leave to amend and that 26 27 the Petition be dismissed. 28 /// U .S. D istrict C ourt E. D . C alifornia -4- 1 III. Accordingly, it is RECOMMENDED that the petition be DISMISSED without leave to 2 3 RECOMMENDATION amend for failure to state a cognizable claim for relief. 4 These findings and recommendations are submitted to the United States District Court 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 6 304 of the Local Rules of Practice for the United States District Court, Eastern District of 7 California. Within thirty (30) days after being served with a copy, any party may file written 8 objections with the Court and serve a copy on all parties. Such a document should be 9 captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the 10 objections shall be served and filed within fourteen (14) days (plus three (3) days if served by 11 mail) after service of the objections. The Court will then review the Magistrate Judge's ruling 12 pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections 13 within the specified time may waive the right to appeal the District Court's order. Martinez v. 14 Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 17 IT IS SO ORDERED. 18 Dated: ci4d6 September 14, 2012 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia -5-
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