(HC) Navarro v. Finn, No. 2:2009cv01522 - Document 14 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/14/11 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(HC) Navarro v. Finn Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOHNNY J. NAVARRO, 11 Petitioner, 12 vs. 13 No. CIV S-09-1522 JAM EFB P CLAUDE FINN, 14 15 16 Respondent. FINDINGS AND RECOMMENDATIONS / Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California 18 Board of Parole Hearings (hereinafter “Board”) to deny him parole at a parole consideration 19 hearing held on May 16, 2007. He claims that the Board’s 2007 decision finding him unsuitable 20 for parole violated his right to due process. 21 As discussed below, the United States Supreme Court has held that the only inquiry on 22 federal habeas review of a denial of parole is whether the petitioner has received “fair 23 procedures” for vindication of the liberty interest in parole given by the state. Swarthout v. 24 Cooke, 562 U.S. ___, No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). In the 25 context of a California parole suitability hearing, a petitioner receives adequate process when 26 he/she is allowed an opportunity to be heard and a statement of the reasons why parole was 1 Dockets.Justia.com 1 denied. Id. at **2-3 (federal due process satisfied where petitioners were “allowed to speak at 2 their parole hearings and to contest the evidence against them, were afforded access to their 3 records in advance, and were notified as to the reasons why parole was denied”); see also 4 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 16 (1979). For the reasons that follow, 5 applying this standard here requires that the petition for writ of habeas corpus be denied. 6 I. Procedural Background 7 Petitioner is confined pursuant to a 1979 judgment of conviction entered against him in 8 the Imperial County Superior Court following his conviction on charges of second degree 9 murder. Pet. at 1.1 Pursuant to that conviction, petitioner was sentenced to fifteen years to life in 10 11 state prison. Id. The parole consideration hearing that is placed at issue by the instant petition was held on 12 May 16, 2007. Id. at 31. Petitioner appeared at and participated in the hearing. Id. at 31-76. 13 Following deliberations held at the conclusion of the hearing, the Board panel announced their 14 decision to deny petitioner parole for two years and the reasons for that decision. Id. at 87-96. 15 Petitioner challenged the Board’s 2007 decision in a petition for writ of habeas corpus 16 filed in the San Joaquin County Superior Court. Answer, Ex. 1. The Superior Court denied that 17 petition in a reasoned decision. Id., Ex. 2. Petitioner subsequently challenged the Board’s 2007 18 decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the 19 Fourth Appellate District. Id., Ex. 3. That petition was also denied in a reasoned decision on the 20 merits of petitioner’s claims. Id., Ex. 4. Petitioner subsequently filed a petition for review in the 21 California Supreme Court. Id., Ex. 5. That petition was summarily denied. Id., Ex. 6. 22 II. Standards for a Writ of Habeas Corpus 23 24 Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim: 25 1 26 Page number citations such as these are to the page number reflected on the court’s CM/ECF system and not to page numbers assigned by the parties. 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 1 2 (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. 3 4 5 6 28 U.S.C. § 2254(d). Under section 2254(d)(1), a state court decision is “contrary to” clearly established 7 United States Supreme Court precedents “if it ‘applies a rule that contradicts the governing law 8 set forth in [Supreme Court] cases’, or if it ‘confronts a set of facts that are materially 9 indistinguishable from a decision’” of the Supreme Court and nevertheless arrives at a different 10 result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 11 (2000)). 12 Under the “unreasonable application” clause of section 2254(d)(1), a federal habeas 13 court may grant the writ if the state court identifies the correct governing legal principle from the 14 Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s 15 case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ simply because 16 that court concludes in its independent judgment that the relevant state-court decision applied 17 clearly established federal law erroneously or incorrectly. Rather, that application must also be 18 unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is “not 19 enough that a federal habeas court, in its independent review of the legal question, is left with a 20 ‘firm conviction’ that the state court was ‘erroneous.’”) 21 The court looks to the last reasoned state court decision as the basis for the state court 22 judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). See also Barker v. Fleming, 423 23 F.3d 1085, 1091 (9th Cir. 2005) (“When more than one state court has adjudicated a claim, we 24 analyze the last reasoned decision”). Where the state court reaches a decision on the merits but 25 provides no reasoning to support its conclusion, a federal habeas court independently reviews the 26 record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. 3 1 Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 2 III. Petitioner’s Claims 3 Petitioner claims that the Board’s 2007 decision finding him unsuitable for parole 4 violated his right to due process because it was based solely on the unchanging factors of his 5 commitment offense and prior criminal history. Pet. at 5. He argues that the Board’s continued 6 reliance on these factors has changed his sentence into one of life without the possibility of 7 parole. Id. He also argues that the Board failed to give adequate consideration to factors 8 indicating he was suitable for parole, such as his institutional behavior and current psychological 9 report. Id. at 6-7. He contends that there was not “some evidence” that he posed a current 10 danger to society if released. Id. at 7, 9. 11 III. Analysis 12 The Due Process Clause of the Fourteenth Amendment prohibits state action that 13 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 14 due process violation must first demonstrate that he was deprived of a liberty or property interest 15 protected by the Due Process Clause and then show that the procedures attendant upon the 16 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 17 490 U.S. 454, 459-60 (1989). 18 A protected liberty interest may arise from either the Due Process Clause of the United 19 States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 20 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 21 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The 22 United States Constitution does not, of its own force, create a protected liberty interest in a 23 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 24 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 25 inherent right of a convicted person to be conditionally released before the expiration of a valid 26 sentence.”); see also Hayward v. Marshall, 603 F.3d 546, 561 (9th Cir. 2010) (en banc). 4 1 However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a presumption that 2 parole release will be granted’ when or unless certain designated findings are made, and thereby 3 gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12). See also Allen, 482 4 U.S. at 376-78. 5 California’s parole scheme2 gives rise to a liberty interest in parole protected by the 6 federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 7 197627, at *2 (Jan. 24, 2011) (per curiam). However, the United States Supreme Court has held 8 that correct application of California’s “some evidence” standard is not required by the federal 9 Due Process Clause. Swarthout, 2011 WL 197627, at *2. Rather, this court’s review is limited 10 to the narrow question of whether the petitioner has received adequate process for seeking 11 parole. Id. at *3. (“Because the only federal right at issue is procedural, the relevant inquiry is 12 what process [petitioner] received, not whether the state court decided the case correctly.”) 13 Adequate process is provided when the inmate is allowed a meaningful opportunity to be heard 14 and a statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied 15 where petitioners were “allowed to speak at their parole hearings and to contest the evidence 16 against them, were afforded access to their records in advance, and were notified as to the 17 reasons why parole was denied”); see also Greenholtz, 442 U.S. at 16. 18 Here, the record reflects that petitioner was present at the 2007 parole hearing, that he 19 participated in the hearing, and that he was provided with the reasons for the Board’s decision to 20 deny parole. Pursuant to Swarthout, this is all that due process requires. As set forth above, 21 federal due process does not require that the Board’s suitability decision be supported by 22 evidence that petitioner was not currently dangerous. Accordingly, petitioner is not entitled to 23 24 25 26 2 In California, a prisoner is entitled to release on parole unless there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). 5 1 relief on his due process claim.3 2 IV. Conclusion 3 4 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 10 within the specified time may waive the right to appeal the District Court’s order. Turner v. 11 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 In any objections he elects to file, petitioner may address whether a certificate of 13 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 14 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 15 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 16 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate 17 //// 18 3 19 20 21 22 23 24 25 26 Petitioner also claims that the Board’s 2007 decision violated his right to equal protection of the laws. Pet. at 5. However, he fails to support this contention with any facts or argument. Petitioner’s claim in this regard is vague and conclusory and should be denied on that basis. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief’”) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). In any event, petitioner has failed to demonstrate that the Board violated his equal protection rights by applying a different suitability standard to him than that applied to others similarly situated. Accordingly, he is not entitled to relief on his equal protection claim. Further, in both the petition and traverse petitioner contends that the Board failed to comply with state laws and regulations when it found him unsuitable for parole at the 2007 hearing. Petitioner’s arguments that the Board, and state courts upholding the Board’s 2007 decision, erred in applying state law are not cognizable in this federal habeas corpus proceeding. See Rivera v. Illinois, ___ U.S. ___, 129 S.Ct. 1446, 1454 (2009) (“[A] mere error of state law . . . is not a denial of due process”) (quoting Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982) and Estelle v. McGuire, 502 U.S. 62, 67, 72-73 (1991)). Accordingly, these claims should be denied as well. 6 1 of appealability to review the denial of a habeas petition challenging an administrative decision 2 such as the denial of parole by the parole board). 3 DATED: February 14, 2011. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7
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