-EFB (HC) Fletcher v. Haviland, No. 2:2010cv01564 - Document 20 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/14/11 RECOMMENDING that 1 Petition for Writ of Habeas Corpus be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)
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-EFB (HC) Fletcher v. Haviland Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 PATRICK FLETCHER, 11 12 13 14 15 16 Petitioner, No. CIV S-10-1564 KJM EFB P vs. J. W. HAVILAND, 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. He challenges the decision of the California Board 18 of Parole Hearings (hereinafter “Board”) to deny him parole at a parole consideration hearing 19 held on April 24, 2009. He claims that the Board’s 2009 decision finding him unsuitable for 20 parole violated his federal 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 1986 judgment of conviction entered against him in 8 the Alameda County Superior Court following his conviction on charges of second degree 9 murder with use of a weapon. Pet. at 1, 2.1 Pursuant to that conviction, petitioner was sentenced 10 to fifteen years to life plus two years in state prison. Id. at 1. 11 The parole consideration hearing that is placed at issue by the instant petition was held on 12 April 24, 2009. Id. at 20. Petitioner appeared at and participated in the hearing. Id. at 22-99. 13 Following deliberations held at the conclusion of the hearing, the Board panel announced their 14 decision to deny petitioner parole for seven years and the reasons for that decision. Id. at 100- 15 10. 16 Petitioner challenged the Board’s 2009 decision in a petition for writ of habeas corpus 17 filed in the Alameda County Superior Court. Answer, Ex. 1. The Superior Court denied that 18 petition in a decision on the merits of petitioner’s claims. Id., Ex. 2. Petitioner subsequently 19 challenged the Board’s 2009 decision in a petition for writ of habeas corpus filed in the 20 California Court of Appeal and a petition for review filed in the California Supreme Court. Id., 21 Exs. 3, 4. Those petitions were summarily denied. Id., Exs. 5, 6. 22 //// 23 //// 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 II. Petitioner’s Claims 2 Petitioner claims that the Board’s 2009 decision finding him unsuitable for parole 3 violated his right to due process because it was not supported by “some evidence” that he posed 4 a current danger to society if released from prison. Pet. at 4. He argues that the state court 5 decision upholding the Board’s failure to find him suitable for parole is based on an 6 unreasonable determination of the facts of this case. Id. at 5. He also argues that the “clear and 7 convincing” standard of review should be used to adjudicate his suitability for parole. Id. at 4, 6. 8 Finally, petitioner contends that the Board’s decision to defer his next parole suitability hearing 9 for seven years violates his right to due process because it was “arbitrary” and “based on 10 personal whim.” Id. at 7, 8. 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). 3 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. California’s parole scheme2 gives rise to a liberty interest in parole protected by the 5 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 2009 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 and to schedule his next parole hearing in seven years. Pursuant to Swarthout, this 21 is all that due process requires. Accordingly, petitioner’s application for a writ of habeas corpus 22 should be denied. 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). 4 1 2 3 IV. Conclusion Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 within the specified time may waive the right to appeal the District Court’s order. Turner v. 10 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 In any objections he elects to file, petitioner may address whether a certificate of 12 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 13 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 14 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 15 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 16 appealability to review the denial of a habeas petition challenging an administrative decision 17 such as the denial of parole by the parole board). 18 DATED: February 14, 2011. 19 20 21 22 23 24 25 26 5
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