-EFB (HC) Searcy v. Swarthout, No. 2:2010cv03011 - Document 18 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 08/30/11 recommending that petitioner's application for writ of habeas corpus be dismissed without leave to amend because petitioner has failed to state a cognizable claim and that respondent's 01/21/11 motion to dismiss be denied as moot. MOTION to DISMISS 10 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
Download PDF
<![CDATA[
-EFB (HC) Searcy v. Swarthout Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DONALD L. SEARCY, Petitioner, 11 vs. 12 13 No. CIV S-10-3011 MCE EFB P GARY SWARTHOUT, Respondent. 14 FINDINGS AND RECOMMENDATIONS / 15 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 16 17 U.S.C. § 2254. He challenges the California Board of Parole Hearings’ 2007 finding that he was 18 unsuitable for parole, claiming that the Board’s decision violated his federal right to due process 19 because it was not supported by some evidence of his current dangerousness and because he was 20 denied the opportunity to present documentation regarding his parole plans, including a relapse 21 prevention program. See Dckt. No. 1. Respondent moves to dismiss this action on the ground 22 that it is barred by the statute of limitations. Dckt. No. 10. Assuming the petition was timely 23 filed, however, the court finds that it must be dismissed, without leave to amend, for failure to 24 state a cognizable claim. 25 //// 26 //// 1 Dockets.Justia.com 1 Under California law, a prisoner is entitled to release unless there is “some evidence” of 2 his or her current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re 3 Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). According to the United States Supreme Court, 4 however, federal habeas review of a parole denial is limited to the narrow question of whether a 5 petitioner has received “fair procedures.” Swarthout v. Cooke, 131 S.Ct. 859, 862 (2011). That 6 is, a federal court may only review whether a petitioner has received a meaningful opportunity to 7 be heard and a statement of reasons why parole was denied. Id. (federal due process satisfied 8 where petitioners were “allowed to speak at their parole hearings and to contest the evidence 9 against them, were afforded access to their records in advance, and were notified as to the 10 11 reasons why parole was denied”). Whether petitioner “was allowed an opportunity to be heard and was provided a 12 statement of the reasons why parole was denied” is “the beginning and the end of the federal 13 habeas courts’ inquiry into whether [petitioner] received due process.” Id. Thus, this court may 14 not review whether the Board correctly applied California’s “some evidence” standard, or 15 whether petitioner’s opportunity to be heard included not only the right to speak and to contest 16 the evidence at his hearing, but also the right to present certain documentation. Id. at *2. The 17 record reflects that petitioner was given the opportunity to be heard at his 2007 parole suitability 18 hearing and received a statement of the reasons why parole was denied. See Dckt. No. 1 at 50- 19 1551 (showing petitioner was present at the hearing, allowed to speak, and represented by an 20 attorney). This is all that due process requires. 21 Accordingly, petitioner’s claim that the Board’s decision violated his right to due process 22 should be dismissed for failure to state a cognizable claim. Further, there is no basis for 23 concluding that a tenable claim for relief could be pleaded if leave to amend were granted. See 24 James v. Giles, 221 F.3d 1074, 1077-78 (9th Cir 2000) (pro se habeas litigants are entitled to a 25 1 26 For ease of reference, all references to page numbers in the petition are to those assigned via the court’s electronic filing system. 2 1 opportunity to amend unless it clearly appears from the petition that the deficiency cannot be 2 overcome); Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (petition for habeas corpus should 3 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 4 pleaded were such leave granted). 5 6 7 In light of the above, the court also finds that respondent’s motion to dismiss should be denied as moot. Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for writ of 8 habeas corpus be dismissed without leave to amend because petitioner has failed to state a 9 cognizable claim and that respondent’s January 21, 2011 motion to dismiss be denied as moot. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 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.” Failure to file objections 15 within the specified time may waive the right to appeal the District Court’s order. Turner v. 16 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 In his objections petitioner may address whether a certificate of appealability should issue in the 18 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 19 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 20 enters a final order adverse to the applicant). 21 Dated: August 30, 2011. 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.
