(HC) Foote v. Cate, et al, No. 2:2010cv00217 - Document 16 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/14/2011 RECOMMENDING that ptnr's request for an evidentiary hearing be denied; and ptnr's 1 application for a writ of habeas corpusbe denied. Referred to Judge Garland E. Burrell, Jr.; Objections due w/in 14 days. (Yin, K)
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(HC) Foote v. Cate, et al Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL D. FOOTE, 11 12 13 14 15 16 Petitioner, No. CIV S-10-0217 GEB EFB P vs. MATTHEW CATE, et al., Respondents. 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 October 6, 2008. He claims that the Board’s decision finding him unsuitable for 20 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 Fresno County Superior Court following his conviction on a charge of first degree murder. 9 Pet. at 14; Answer at 2.1 Pursuant to that conviction, petitioner was sentenced to seven years to 10 life in state prison. Pet. at 14. 11 The parole consideration hearing that is placed at issue by the instant petition was held on 12 October 6, 2008. Dckt. 1-1, at 28. Petitioner appeared at and participated in the hearing. Id. at 13 30-135. Following deliberations held at the conclusion of the hearing, the Board panel 14 announced their decision to deny petitioner parole for one year and the reasons for that decision. 15 Id. at 136-44. Petitioner challenged the Board’s 2008 decision in a petition for writ of habeas corpus 16 17 filed in the Fresno County Superior Court. Answer, Ex. 1 The Superior Court denied that 18 petition in a reasoned decision. Id., Ex. 2. Petitioner subsequently challenged the Board’s 2008 19 decision in a petition for writ of habeas corpus filed in the California Court of Appeal. Id., Ex. 3. 20 The Court of Appeal denied that petition with a citation to In re Lawrence, 44 Cal.4th 1181 21 (2008) and In re Shaputis, 44 Cal.4th 1241 (2008). Id., Ex. 4. Petitioner subsequently filed a 22 petition for review in the California Supreme Court. Id., Ex. 5. That petition was summarily 23 denied. Id., Ex. 6. 24 //// 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 2 3 II. Standards for a Writ of Habeas Corpus 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: 4 (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 5 6 (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. 7 8 9 28 U.S.C. § 2254(d). Under section 2254(d)(1), a state court decision is “contrary to” clearly established 10 United States Supreme Court precedents “if it ‘applies a rule that contradicts the governing law 11 set forth in [Supreme Court] cases’, or if it ‘confronts a set of facts that are materially 12 indistinguishable from a decision’” of the Supreme Court and nevertheless arrives at a different 13 result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 14 (2000)). 15 Under the “unreasonable application” clause of section 2254(d)(1), a federal habeas 16 court may grant the writ if the state court identifies the correct governing legal principle from the 17 Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s 18 case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ simply because 19 that court concludes in its independent judgment that the relevant state-court decision applied 20 clearly established federal law erroneously or incorrectly. Rather, that application must also be 21 unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is “not 22 enough that a federal habeas court, in its independent review of the legal question, is left with a 23 ‘firm conviction’ that the state court was ‘erroneous.’”) 24 The court looks to the last reasoned state court decision as the basis for the state court 25 judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). See also Barker v. Fleming, 423 26 F.3d 1085, 1091 (9th Cir. 2005) (“When more than one state court has adjudicated a claim, we 3 1 analyze the last reasoned decision”). Where the state court reaches a decision on the merits but 2 provides no reasoning to support its conclusion, a federal habeas court independently reviews the 3 record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. 4 Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 5 III. Petitioner’s Claims 6 Petitioner raises four grounds for federal habeas corpus relief. First, he claims that he has 7 a liberty interest in parole that is protected by the Due Process Clause of the Fourteenth 8 Amendment. Pet. at 18-21. Second, he claims that the Board’s 2008 decision denying him a 9 parole date was not supported by “some evidence” that he would pose a danger to society if 10 released and that he was not provided an individualized assessment of his risk factors. Id. at 21- 11 23. Third, petitioner claims that the Board’s 2008 decision was not supported by “some 12 evidence” that he would pose a danger to society if released and was “arbitrary and capricious 13 and without merit.” Id. at 23-29. Fourth, petitioner claims that the Board’s reliance on his 14 commitment offense to find him unsuitable for parole, without explaining a nexus between the 15 offense and his current dangerousness, did not “satisfy the some evidence standard of review.” 16 Id. at 29-33. All of petitioner’s arguments constitute a single claim that the Board’s 2008 17 suitability decision violates his right to due process. 18 IV. Applicable Legal Standards 19 The Due Process Clause of the Fourteenth Amendment prohibits state action that 20 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 21 due process violation must first demonstrate that he was deprived of a liberty or property interest 22 protected by the Due Process Clause and then show that the procedures attendant upon the 23 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 24 490 U.S. 454, 459-60 (1989). 25 26 A protected liberty interest may arise from either the Due Process Clause of the United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 4 1 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 2 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The 3 United States Constitution does not, of its own force, create a protected liberty interest in a 4 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 5 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 6 inherent right of a convicted person to be conditionally released before the expiration of a valid 7 sentence.”); see also Hayward v. Marshall, 603 F.3d 546, 561 (9th Cir. 2010) (en banc). 8 However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a presumption that 9 parole release will be granted’ when or unless certain designated findings are made, and thereby 10 gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12). See also Allen, 482 11 U.S. at 376-78. 12 California’s parole scheme gives rise to a liberty interest in parole protected by the 13 federal due process clause. Swarthout v. Cooke, 562 U.S. at ___, 2011 WL 197627, at *2. In 14 California, a prisoner is entitled to release on parole unless there is “some evidence” of his or her 15 current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re 16 Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, the United States Supreme Court has 17 held that correct application of California’s “some evidence” standard is not required by the 18 federal Due Process Clause. Swarthout, 2011 WL 197627, at *2. Rather, the inquiry on federal 19 habeas is whether the petitioner has received “fair procedures” for vindication of the liberty 20 interest in parole given by the state. Id. In the context of a parole suitability hearing, a petitioner 21 receives adequate process when he/she is allowed an opportunity to be heard and a statement of 22 the reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners 23 were “allowed to speak at their parole hearings and to contest the evidence against them, were 24 afforded access to their records in advance, and were notified as to the reasons why parole was 25 denied”); see also Greenholtz, 442 U.S. at 16. 26 //// 5 1 V. Analysis 2 The record reflects that petitioner was present at the 2008 parole hearing, that he 3 participated in the hearing, and that he was provided with the reasons for the Board’s decision to 4 deny parole. Pursuant to Swarthout, this is all that due process requires. As set forth above, 5 federal due process does not require that the Board’s suitability decision be supported by 6 evidence that petitioner was not currently dangerous. Accordingly, petitioner is not entitled to 7 relief on his due process claim. 8 VI. Request for Evidentiary Hearing 9 10 11 12 13 Petitioner requests an evidentiary hearing on his due process claims. Pet. at 34. Pursuant to 28 U.S.C. § 2254(e)(2), an evidentiary hearing is appropriate under the following circumstances: (e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- 14 (A) the claim relies on- 15 (I) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 16 17 (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and 18 19 20 21 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense[.] Under this statutory scheme, a district court presented with a request for an evidentiary 22 hearing must first determine whether a factual basis exists in the record to support a petitioner’s 23 claims and, if not, whether an evidentiary hearing “might be appropriate.” Baja v. Ducharme, 24 187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 25 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner requesting 26 an evidentiary hearing must also demonstrate that he has presented a “colorable claim for relief.” 6 1 Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. Woodford, 365 F.3d 2 706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). To show 3 that a claim is “colorable,” a petitioner is “required to allege specific facts which, if true, would 4 entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation 5 marks and citation omitted). 6 The court concludes that no additional factual supplementation is necessary in this case 7 and that an evidentiary hearing is not appropriate with respect to the due process claim raised in 8 the instant petition. The facts alleged in support of these claims, even if established at a hearing, 9 would not entitle petitioner to federal habeas relief. Therefore, petitioner’s request for an 10 evidentiary hearing should be denied. 11 VII. Conclusion 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. Petitioner’s request for an evidentiary hearing be denied; and 14 2. Petitioner’s application for a writ of habeas corpus be denied. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 20 within the specified time may waive the right to appeal the District Court’s order. Turner v. 21 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 In any objections he elects to file, petitioner may address whether a certificate of 23 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 24 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 25 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 26 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 7 1 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 8
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