(HC) Fernandez v. Felker, et al.,, No. 2:2010cv00535 - Document 22 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 08/04/11 recommending that respondent's 03/10/11 motion to dismiss 20 be granted. Petitioner's petition for writ of habeas corpus 1 be dismissed; and this action be closed. Petition for Writ of Habeas Corpus 1 and 20 MOTION to DISMISS referred to Judge Frank C. Damrell. Objections due within 21 days. (Plummer, M)
Download PDF
<![CDATA[
(HC) Fernandez v. Felker, et al., Doc. 22 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FELICIANO FERNANDEZ, 11 12 13 14 15 Petitioner, No. CIV S-10-0535 FCD DAD P vs. T. FELKER, Warden, Respondent. FINDINGS AND RECOMMENDATIONS / 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254, challenging the October 24, 2006 decision of the California 18 Board of Parole Hearings (“Board”) to deny him parole. On March 10, 2011, respondent filed 19 the pending motion to dismiss, arguing that petitioner’s federal habeas petition fails to state a 20 cognizable claim. Petitioner has filed an opposition to the motion. 21 22 BACKGROUND On October 24, 2006, the Board conducted a parole hearing and found petitioner 23 unsuitable for release on parole. The Board’s decision became final on February 21, 2007. In his 24 petition, petitioner asserts three grounds for relief, in each of which he essentially claims that the 25 Board’s 2006 decision finding him unsuitable for parole violated his constitutional rights because 26 it was based on insufficient evidence. (Pet. at 5-6 & Exs. 1-3.) 1 Dockets.Justia.com 1 2 3 ANALYSIS I. Scope of Review Applicable to Due Process Challenges to the Denial of Parole The Due Process Clause of the Fourteenth Amendment prohibits state action that 4 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 5 due process violation must first demonstrate that he was deprived of a liberty or property interest 6 protected by the Due Process Clause and then show that the procedures attendant upon the 7 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 8 490 U.S. 454, 459-60 (1989). 9 A protected liberty interest may arise from either the Due Process Clause of the 10 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 11 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 12 221 (2005). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States 13 Constitution does not, of its own force, create a protected liberty interest in a parole date, even 14 one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of 15 Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or inherent right of a convicted 16 person to be conditionally released before the expiration of a valid sentence.”). However, a 17 state’s statutory scheme, if it uses mandatory language, “creates a presumption that parole release 18 will be granted” when or unless certain designated findings are made, and thereby gives rise to a 19 constitutional liberty interest. Greenholtz, 442 U.S. at 12. See also Allen, 482 U.S. at 376-78. 20 California’s parole scheme gives rise to a liberty interest in parole protected by the 21 federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th 22 Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002); see also Swarthout v. 23 Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 861-62 (2011) (finding the Ninth Circuit’s holding in 24 this regard to be a reasonable application of Supreme Court authority); Pearson v. Muntz, 639 25 F.3d 1185, 1191 (9th Cir. 2011) (“[Swarthout v.] Cooke did not disturb our precedent that 26 California law creates a liberty interest in parole.”). In California, a prisoner is entitled to release 2 1 on parole unless there is “some evidence” of his or her current dangerousness. In re Lawrence, 2 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). 3 In Swarthout, the Supreme Court reviewed two cases in which California 4 prisoners were denied parole - in one case by the Board, and in the other by the Governor after 5 the Board had granted parole. Swarthout, 131 S. Ct. at 860-61. The Supreme Court noted that 6 when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment 7 requires fair procedures, “and federal courts will review the application of those constitutionally 8 required procedures.” Id. at 862. The Court concluded that in the parole context, however, “the 9 procedures required are minimal” and that the “Constitution does not require more” than “an 10 opportunity to be heard” and being “provided a statement of the reasons why parole was denied.” 11 Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit 12 decisions that went beyond these minimal procedural requirements and “reviewed the state 13 courts’ decisions on the merits and concluded that they had unreasonably determined the facts in 14 light of the evidence.” Swarthout, 131 S. Ct. at 862. In particular, the Supreme Court rejected 15 the application of the “some evidence” standard to parole decisions by the California courts as a 16 component of the federal due process standard. Id. at 862-63.1 See also Pearson, 639 F.3d at 17 1191. 18 II. Petitioner’s Claims for Relief 19 Petitioner seeks federal habeas relief on the grounds that the Board’s 2006 20 decision to deny him parole, and the findings upon which that denial was based, were not 21 supported by sufficient evidence in violation of the Due Process Clause of the Fourteenth 22 23 24 25 26 1 In its per curiam opinion the Supreme Court did not acknowledge that for twenty-four years the Ninth Circuit had consistently held that in order to comport with due process a state parole board’s decision to deny parole had to be supported by “some evidence,” as defined in Superintendent v. Hill, 472 U.S. 445 (1985), that bore some indicia of reliability. See Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002) (“In Jancsek . . . we held that the process that is due in the parole rescission setting is the same as the Supreme Court outlined in Superintendent v. Hill . . . .”). 3 1 Amendment.2 However, under the Supreme Court’s decision in Swarthout this court may not 2 review whether California’s “some evidence” standard was correctly applied in petitioner’s case. 3 131 S. Ct. at 862-63; see also Miller v. Oregon Bd. of Parole and Post-Prison Supervision, 642 4 F.3d 711, 716 (9th Cir. 2011) (“The Supreme Court held in [Swarthout v.] Cooke that in the 5 context of parole eligibility decisions the due process right is procedural, and entitles a prisoner 6 to nothing more than a fair hearing and a statement of reasons for a parole board’s decision[.]”); 7 Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011) (under the decision in Swarthout, 8 California’s parole scheme creates no substantive due process rights and any procedural due 9 process requirement is met as long as the state provides an inmate seeking parole with an 10 opportunity to be heard and a statement of the reasons why parole was denied); Pearson, 639 11 F.3d at 1191 (“While the Court did not define the minimum process required by the Due Process 12 Clause for denial parole under the California system, it made clear that the Clause’s requirements 13 were satisfied where the inmates ‘were allowed to speak at their parole hearings and to contest 14 the evidence against them, were afforded access to their records in advance, and were notified as 15 to the reasons why parole was denied.’”). 16 The federal habeas petition pending before the court in this case reflects that 17 petitioner was represented by counsel at his 2006 parole suitability hearing. The record also 18 establishes that at that hearing petitioner was given the opportunity to be heard and received a 19 statement of the reasons why parole was denied by the Board panel. (Pet. Ex. A.) That is all the 20 process that was due petitioner under the U.S. Constitution. Swarthout, 131 S. Ct. 862; see also 21 2 22 23 24 25 26 In his petition and opposition to the pending motion to dismiss petitioner contends that his claims also arise under the Equal Protection Clause, the Double Jeopardy Clause, and the Self-Incrimination Clause. However, petitioner does not support any such claims by allegations of relevant facts or argument. For example, petitioner has not alleged that the Board treated him differently from similarly situated inmates or that the Board (or the state) has placed him in jeopardy twice for the same offense or conduct. Nor has petitioner alleged any circumstances which might fall under the constitutional protection against self-incrimination. Accordingly, petitioner has failed to state a cognizable claim for habeas corpus relief based on a violation of these other constitutional provisions, and any such claims should be summarily dismissed. See Rule 4, Rules Governing Section 2254 Cases. 4 1 Miller, 642 F.3d at 716; Roberts, 640 F.3d at 1046; Pearson, 639 F.3d at 1191. Accordingly, the 2 pending petition should be dismissed because it plainly appears from the face of the petition and 3 the exhibits annexed to it that the petitioner is not entitled to federal habeas relief with respect to 4 his due process claim. 5 CONCLUSION 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. Respondent’s March 10, 2011 motion to dismiss (Doc. No. 20) be granted; 8 2. Petitioner’s petition for writ of habeas corpus (Doc. No. 1) be dismissed; and 9 3. This action be closed. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 12 one days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within seven days after service of the objections. The parties are 16 advised that failure to file objections within the specified time may waive the right to appeal the 17 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 In any objections he elects to file, petitioner may address whether a certificate of 19 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 20 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 21 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 22 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 23 ///// 24 ///// 25 ///// 26 ///// 5 1 appealability to review the denial of a habeas petition challenging an administrative decision 2 such as the denial of parole by the Board), overruled in part by Swarthout, 131 S. Ct. 859 (2011). 3 DATED: August 4, 2011. 4 5 6 DAD:9 fern0535.157 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
