-GGH (HC) Weathersby v. Swarthout, et al, No. 2:2011cv00583 - Document 4 (E.D. Cal. 2011)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/18/2011 ORDERING that a district judge be assigned to this case; and RECOMMENDING that this 1 petition be dismissed. Assigned and Referred to Judge Kimberly J. Mueller; Objections due w/in 14 days. (Yin, K)
Download PDF
<![CDATA[
-GGH (HC) Weathersby v. Swarthout, et al Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ERIC WEATHERSBY, 11 12 13 Petitioner, No. CIV S-11-0583 GGH P vs. GARY SWARTHOUT, Warden, et al., 14 15 16 17 ORDER & Respondents. FINDINGS AND RECOMMENDATIONS, / Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2008 hearing decision by the 19 California Board of Parole Hearings (BPH) finding him unsuitable for parole. The only specified 20 ground for relief consists of the asserted lack of evidence warranting a denial of his parole 21 eligibility, or other assertions equating with a lack of evidence. 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. ___, 131 S. Ct. 859, 861 (2011). Quoting, inter alia, Estelle v. 26 McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed that “‘federal habeas corpus 1 Dockets.Justia.com 1 relief does not lie for errors of state law.’” Id. While the high court found that the Ninth 2 Circuit’s holding that California law does create a liberty interest in parole was “a reasonable 3 application of our cases” (while explicitly not reviewing that holding),1 the Supreme Court 4 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 862. 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 v. Cooke, at 862. Noting their holding therein that “[t]he Constitution [] does not 13 require more,” the justices in the instances before them, found the prisoners had “received at least 14 this amount of process: They were allowed to speak at their parole hearings and to contest the 15 evidence against them, were afforded access to their records in advance, and were notified as to 16 the reasons why 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 v. Cooke, at 862. “It 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 will not do to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty 2 interest....” Id., at 863. “No opinion of ours supports converting California’s “some evidence” 3 rule into a substantive federal requirement.” Id., at 862. Thus, there is no federal due process 4 requirement for a “some evidence” review and federal courts are precluded from review of the 5 state court’s application of its “some evidence” standard.3 Therefore, this case should be 6 dismissed. 7 8 Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this case. 9 IT IS HEREBY RECOMMENDED that this petition be dismissed. 10 If petitioner files objections, he shall also address if a certificate of appealability 11 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 12 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 13 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 14 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 17 days after being served with these findings and recommendations, petitioner may file written 18 objections with the court. Such a document should be captioned “Objections to Magistrate 19 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 20 \\\\\ 21 \\\\\ 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 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: March 18, 2011 4 5 /s/ Gregory G. Hollows ___________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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.
