(HC) Herrera v. Long, No. 1:2016cv00091 - Document 9 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition without Leave to Amend; ORDER DIRECTING Clerk of Court to Assign District Court Judge to the Present Matter signed by Magistrate Judge Michael J. Seng on 1/23/2016. Referred to Judge Anthony W. Ishii. Objections to F&R due by 2/29/2016. The new case number is 1:16-cv-00091-AWI-MJS(HC). (Sant Agata, S)
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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 1:16-cv-00091 MJS HC RICHARD RIOS HERRERA, 12 FINDINGS AND RECOMMENDATIONS TO Petitioner, DISMISS PETITION WITHOUT LEAVE TO AMEND v. 13 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE TO THE PRESENT MATTER 14 15 DAVID B. LONG, Respondent. 16 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254. 20 I. DISCUSSION 21 A. 22 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 23 24 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. 25 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a 26 petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the 27 respondent’s motion to dismiss, or after an answer to the petition has been filed. See 28 Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). Allegations in a petition that are vague, Procedural Grounds for Summary Dismissal 1 1 conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. 2 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus should not be 3 dismissed without leave to amend unless it appears that no tenable claim for relief can 4 be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 5 B. Factual Summary 6 On November 10, 2015, Petitioner filed the instant petition for writ of habeas 7 corpus. (Pet., ECF No. 1.) Petitioner challenges an April 21, 2015 decision of the Board 8 of Parole Hearings finding Petitioner unsuitable for parole. (ECF No. 1-1 at 10-11.) 9 Petitioner asserts the California courts unreasonably denied his claims that the Parole 10 Board engaged in an arbitrary decision making process and falsified evidence against 11 him during the hearing. (Pet.) 12 C. Federal Review of State Parole Decisions 13 Because the petition was filed after April 24, 1996, the effective date of the 14 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in 15 this proceeding. Lindh v. Murphy, 521 U.S. 320, 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481 16 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 17 A district court may entertain a petition for a writ of habeas corpus by a person in 18 custody pursuant to the judgment of a state court only on the ground that the custody is 19 in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 20 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7, 120 S. Ct. 1495, 146 L. 21 Ed. 2d 389 (2000); Wilson v. Corcoran, 131 S.Ct. 13, 16, 178 L. Ed. 2d 276 (2010). 22 The Supreme Court has characterized as reasonable the decision of the Court of 23 Appeals for the Ninth Circuit that California law creates a liberty interest in parole 24 protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair 25 procedures with respect to the liberty interest. Swarthout v. Cooke, 131 S.Ct. 859, 861- 26 62, 178 L. Ed. 2d 732 (2011). 27 However, the procedures required for a parole determination are the minimal 28 requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 2 1 442 U.S. 1, 12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Swarthout, 131 S.Ct. at 862. In 2 Swarthout, the Court rejected inmates' claims that they were denied a liberty interest 3 because there was an absence of "some evidence" to support the decision to deny 4 parole. The Court stated: 5 10 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.) 11 Swarthout, 131 S.Ct. at 862. The Court concluded that the petitioners had received the 12 process that was due as follows: 6 7 8 9 13 14 15 16 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.... That should have been the beginning and the end of the federal habeas courts' inquiry into whether [the petitioners] received due process. Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly noted that California's 17 "some evidence" rule is not a substantive federal requirement, and correct application of 18 California's "some evidence" standard is not required by the Federal Due Process 19 Clause. Id. at 862-63. This is true regardless whether Petitioner is challenging a decision 20 by the Board to deny parole or the Governor's reversal of a parole grant. Swarthout, 131 21 S. Ct. at 860-61; Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir. 2011) ("[w]e now hold 22 that the Due Process Clause does not require that the Governor hold a second suitability 23 hearing before reversing a parole decision."). 24 Here, Petitioner argues that the Board's decision was arbitrary and that it relied on 25 falsified evidence. (Pet.) As described by Swarthout, Petitioner has a right to access his 26 records in advance and to speak at the parole hearing to contest the evidence 27 presented. 131 S.Ct. at 862. In the petition, Petitioner does not assert that he was 28 3 1 denied his right to prior notice of the evidence and an opportunity to contest it at his 2 suitability hearing. Accordingly, Petitioner has not shown that the minimal due process 3 rights afforded under Greenholtz and Swarthout have been violated. Petitioner does not 4 assert cognizable federal grounds for challenging the parole decision. Petitioner is not 5 entitled to habeas relief. 6 A petition for habeas corpus should not be dismissed without leave to amend 7 unless it appears that no tenable claim for relief can be pleaded were such leave 8 granted. Jarvis, 440 F.2d at 14. Here, the Court concludes that it would be futile to grant 9 Petitioner leave to amend his petition, and recommends the petition to be dismissed. 10 Finally, the Court notes that Petitioner attached significant documentation 11 regarding an inmate health care appeal in which he alleged a denial of dental care to the 12 present petition. It appears that such documents were inadvertently attached to the 13 petition. Petitioner did not assert any claims of inadequate medical care in his petition. 14 However, had such claims been asserted, they are not cognizable in a petition for writ of 15 habeas corpus and would be subject to dismissal. If Petitioner desires to file such claims, 16 he should do so by way of a separate civil rights complaint. 17 II. CONCLUSION 18 Although Petitioner asserts that his right to due process of law was violated by the 19 Board's decision, Petitioner has not alleged facts pointing to a real possibility of a 20 violation of the minimal requirements of due process set forth in Greenholtz, 442 U.S. 1. 21 The Court concludes that it would be futile to grant Petitioner leave to amend and that 22 the Petition be dismissed. 23 III. RECOMMENDATION 24 Accordingly, it is RECOMMENDED that the motion to dismiss be granted, and the 25 petition be DISMISSED without leave to amend as Petitioner has not made a showing 26 that he is entitled to relief. Further, the Court ORDERS the Clerk of Court to assign a 27 District Court Judge to the present matter. 28 These findings and recommendations are submitted to the United States District 4 1 Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 2 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 3 Eastern District of California. Within thirty (30) days after being served with a copy, any 4 party may file written objections with the Court and serve a copy on all parties. Such a 5 document should be captioned "Objections to Magistrate Judge's Findings and 6 Recommendations." Replies to the objections shall be served and filed within fourteen 7 (14) days (plus three (3) days if served by mail) after service of the objections. The Court 8 will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 9 Petitioner is advised that failure to file objections within the specified time may 10 waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 11 839 (9th Cir. 2014). 12 13 14 15 IT IS SO ORDERED. Dated: January 23, 2016 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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