-GGH (HC) Joseph v. Swarthout, No. 2:2011cv00260 - Document 5 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 2/7/11 ORDERING that a district judge be assigned to thiscase; RECOMMENDING that claims 2 and 3 be dismissed from this petition and this matter proceed only as to claim 1 re 1 Petition for Writ of Habeas Corpus. Randomly assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
Download PDF
<![CDATA[
-GGH (HC) Joseph v. Swarthout Doc. 5 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 JOHN GONZALES JOSEPH, 10 Petitioner, 11 12 No. CIV S-11-0260 GGH P vs. GARY SWARTHOUT, 13 ORDER & FINDINGS AND RECOMMENDATIONS Respondent. 14 / 15 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas 16 corpus pursuant to 28 U.S.C. § 2254. Petitioner was sentenced to a term of sixteen years to life 17 with the possibility of parole in 1997, having been convicted of second degree murder with an 18 enhancement for use of a deadly weapon. Petition, p. 1. Petitioner challenges the decision by the 19 California Board of Parole Hearings (BPH) finding him unsuitable for parole which became final 20 in January 2010. Petitioner raises three grounds for his challenge: 1) the BPH’s unlawful 21 practice of denying parole in 99.7% of initial parole hearings denied him an individualized parole 22 consideration1; 2) violation of due process because there was not “some evidence” in the record 23 to support BPH’s finding that he poses a current unreasonable risk to public safety; 3) Marsy’s 24 \\\\\ 25 26 1 The court understands this claim to be a “bias of the adjudicator” due process claim. 1 Dockets.Justia.com 1 Law2 violates the ex post facto and due process clauses of the state and federal constitutions. See 2 Petition. 3 As to claim 2, on January 24, 2011, the United States Supreme Court in a per 4 curiam decision found that the Ninth Circuit erred in commanding a federal review of the state’s 5 application of state law in applying the “some evidence” standard in the parole eligibility habeas 6 context. Swarthout v. Cooke, 502 U.S. ___, ___ S. Ct. ___, 2011 WL 197627 *2 (Jan. 24, 7 2011). Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re- 8 affirmed that “‘federal habeas corpus relief does not lie for errors of state law.’” Id. While the 9 high court found that the Ninth Circuit’s holding that California law does create a liberty interest 10 in parole was “a reasonable application of our cases” (while explicitly not reviewing that 11 holding),3 the Supreme Court stated: 12 When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication-and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. 13 14 15 Swarthout v. Cooke, at *2. Citing Greenholtz,4 the Supreme Court noted it had found under another state’s 16 17 similar parole statute that a prisoner had “received adequate process” when “allowed an 18 19 2 20 3 21 22 23 24 25 26 Cal. Penal Code § 3041.5, as amended in 2008 by Proposition 9 (Marsy’s Law). While not specifically overruling Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), the Supreme Court instead referenced Pearson v. Muntz, 606 F.3d 606 (9th Cir. 2010), which further explained Hayward. Thus, the Supreme Court’s decision in Swarthout, essentially overruled the general premise of Hayward. When circuit authority is overruled by the Supreme Court, a district court is no longer bound by that authority, and need not wait until the authority is also expressly overruled. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). Furthermore, “circuit precedent, authoritative at the time it was issued, can be effectively overruled by subsequent Supreme Court decisions that ‘are closely on point,’ even though those decisions do not expressly overrule the prior circuit precedent.” Miller, 335 F.3d at 899 (quoting Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)). Therefore, this court is not bound by Hayward. 4 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). 2 1 opportunity to be heard” and “provided a statement of the reasons why parole was denied.” 2 Swarthout, at *2. Noting their holding therein that “[t]he Constitution [] does not require more,” 3 the justices in the instances before them, found the prisoners had “received at least this amount of 4 process: They were allowed to speak at their parole hearings and to contest the evidence against 5 them, were afforded access to their records in advance, and were notified as to the reasons why 6 parole was denied.” Id. 7 The Supreme Court was emphatic in asserting “[t]hat should have been the 8 beginning and the end of the federal habeas courts’ inquiry....” Swarthout, at *3. “It will not do 9 to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty interest....” Id. 10 “No opinion of ours supports converting California’s “some evidence” rule into a substantive 11 federal requirement.” Id. Thus, it appears there is no federal due process requirement for a 12 “some evidence” review and it also appears that federal courts are precluded from review of the 13 state court’s application of its “some evidence” standard. Therefore, this claim should be 14 dismissed. 15 As to claim 3, implicating Marsy’s Law for his three-year parole denial, that claim 16 should be dismissed in light of the class action, Gilman v. Fisher, CIV-S-05-0830 LKK GGH. 17 The parameters of the Gilman class, as is made clear in the Order certifying the class, include 18 petitioner. Order, filed on March 4, 2009, in Gilman v. Fisher, CIV-S-05-0830 LKK GGH.5 19 The Gilman class is made up of: 20 California state prisoners who: “(i) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions.” 21 22 23 Id., p. 10.6 24 5 25 See Docket # 182 of Case No. 05-CV-0830. 6 26 As noted in the October 18, 2010, Order, at p. 3, the Ninth Circuit affirmed the Order, certifying the class. See Docket # 258 in Case No. 05-CV-0830. 3 1 What is at issue in the suit are: “the procedures used in determining suitability for 2 parole: the factors considered, the explanations given, and the frequency of the hearings.” Id., p. 3 8 [emphasis in original]. The “frequency of the hearings” is precisely what is at issue in the third 4 claim of the instant petition. 5 6 Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this case. 7 8 IT IS HEREBY RECOMMENDED that claims 2 and 3 be dismissed from this petition and this matter proceed only as to claim 1. 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, petitioner may file written 17 objections with the court. Such a document should be captioned “Objections to Magistrate 18 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 19 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 20 Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: February 7, 2011 /s/ Gregory G. Hollows ___________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 22 23 24 25 GGH:009 jose0260.scr 26 4
]]>
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.
