-GGH (HC) Bonifacio v. Salinas, No. 2:2011cv00529 - Document 10 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/17/2011 ORDERING that a district judge be assigned to this case. IT IS HEREBY RECOMMENDED that this petition be dismissed. Referred to Judge Frank C. Damrell, Jr.. Objections to F&R due within 14 days. (Zignago, K.)
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-GGH (HC) Bonifacio v. Salinas Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 WILSON BONIFACIO, 11 13 No. CIV S-11-0529 GGH P Respondent. 12 Petitioner, ORDER & FINDINGS AND RECOMMENDATIONS vs. S. SALINAS, 14 15 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. Petitioner challenges the decision by the California Board 18 of Parole Hearings (BPH) finding him unsuitable for parole. Petitioner alleges that the BPH 19 decision was not supported by the record, relied on immutable factors and lacked evidence. 20 Petitioner also contends that a three year denial until his next parole hearing pursuant to 21 Proposition 9 was improper and violated Ex Post Facto laws. 22 On January 24, 2011, the United States Supreme Court in a per curiam decision 23 found that the Ninth Circuit erred in commanding a federal review of the state’s application of 24 state law in applying the “some evidence” standard in the parole eligibility habeas context. 25 Swarthout v. Cooke, 502 U.S. ___, ___ S. Ct. ___, 2011 WL 197627 *2 (Jan. 24, 2011). 26 Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed 1 Dockets.Justia.com 1 that “‘federal habeas corpus relief does not lie for errors of state law.’” Id. While the high court 2 found that the Ninth Circuit’s holding that California law does create a liberty interest in parole 3 was “a reasonable application of our cases” (while explicitly not reviewing that holding),1 the 4 Supreme Court stated: 5 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. 6 7 8 Swarthout v. Cooke, at *2. Citing Greenholtz,2 the Supreme Court noted it had found under another state’s 9 10 similar parole statute that a prisoner had “received adequate process” when “allowed an 11 opportunity to be heard” and “provided a statement of the reasons why parole was denied.” 12 Swarthout, at *2. Noting their holding therein that “[t]he Constitution [] does not require more,” 13 the justices in the instances before them, found the prisoners had “received at least this amount of 14 process: They were allowed to speak at their parole hearings and to contest the evidence against 15 them, were afforded access to their records in advance, and were notified as to the reasons why 16 parole was denied.” Id. 17 18 The Supreme Court was emphatic in asserting “[t]hat should have been the beginning and the end of the federal habeas courts’ inquiry....” Swarthout, at *3. “It will not do 19 20 21 22 23 24 25 26 1 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. 2 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). 2 1 to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty interest....” Id. 2 “No opinion of ours supports converting California’s “some evidence” rule into a substantive 3 federal requirement.” Id. Thus, there is no federal due process requirement for a “some 4 evidence” review and federal courts are precluded from review of the state court’s application of 5 its “some evidence” standard.3 As a result, petitioner’s evidentiary claims must be dismissed. 6 With respect to petitioner’s claim regarding Proposition 9, this claim is not 7 properly brought in habeas petition and as petitioner is part of the class action, Gilman v. Fisher, 8 CIV-S-05-0830 LKK GGH, this claim should also be dismissed without prejudice. 9 Therefore, this case should be dismissed. 10 11 Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this case. 12 IT IS HEREBY RECOMMENDED that this petition be dismissed. 13 If petitioner files objections, he shall also address if a certificate of appealability 14 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 15 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 16 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 17 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 18 These findings and recommendations are submitted to the United States District 19 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 20 days after being served with these findings and recommendations, petitioner may file written 21 objections with the court. Such a document should be captioned “Objections to Magistrate 22 3 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. 3 1 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 2 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 3 Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 DATED: March 17, 2011 /s/ Gregory G. Hollows ___________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 5 6 7 8 GGH: AB boni0529.parole.scrn 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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