(HC) Burnight v. Swarthout, No. 2:2010cv00919 - Document 19 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 03/07/11 recommending that the petition be denied. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
Download PDF
<![CDATA[
(HC) Burnight v. Swarthout Doc. 19 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 JON BURNIGHT, 10 11 12 13 14 Petitioner, No. CIV S-10-0919 MCE GGH P vs. GARY SWARTHOUT, Respondent. FINDINGS & RECOMMENDATIONS / 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 16 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2009 decision by the California 17 Board of Parole Hearings (BPH) finding him unsuitable for parole. 18 On January 28, 2011, the undersigned ordered both parties to provide briefing 19 regarding the recent United States Supreme Court decision that found that the Ninth Circuit erred 20 in commanding a federal review of the state’s application of state law in applying the “some 21 evidence” standard in the parole eligibility habeas context. Swarthout v. Cooke, 502 U.S. ___, 22 ___ S. Ct. ___, 2011 WL 197627 *2 (Jan. 24, 2011). 23 The parties have timely filed briefing, yet for the reasons set forth in the prior 24 order, it appears there is no federal due process requirement for a “some evidence” review, thus 25 the federal courts are precluded from a review of the state court’s application of its “some 26 evidence” standard. Petitioner raises no other substantive claim aside from an assertion of a lack 1 Dockets.Justia.com 1 of evidence to support the decision. 2 3 Therefore, petitioner’s claim based on the alleged violation of California’s “some evidence” requirement should be denied.1 4 In addition to arguing there was not “some evidence” petitioner also contends that 5 a three year denial until his next parole hearing pursuant to Proposition 9 was improper. As this 6 claim is not properly brought in habeas petition and as petitioner is part of the class action, 7 Gilman v. Fisher, CIV-S-05-0830 LKK GGH, this claim should be dismissed without prejudice. 8 Accordingly, IT IS HEREBY RECOMMENDED that the petition be denied. 9 If petitioner files objections, he shall also address if a certificate of appealability 10 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 11 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 12 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 13 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 16 days after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 19 shall be served and filed within fourteen days after service of the objections. The parties are 20 \\\\\ 21 \\\\\ 22 1 23 24 25 26 The court notes some perversity in the result here. Loss of good-time credits, even for a day, pursuant to decision at a prison disciplinary hearing, must be supported by “some evidence.” Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768 (1985). Assignment to administrative segregation requires the same “some evidence” before such an assignment can be justified. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.2003). However, a denial of parole eligibility after sometimes decades in prison, and where another opportunity for parole can be delayed for as long as fifteen more years, requires no such protection from the federal due process standpoint. Nevertheless, such is the state of the law. 2 1 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: March 7, 2011 /s/ Gregory G. Hollows ___________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 4 5 6 GGH: AB burn0919.dis 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
]]>
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.
