Walker v. Swarthout
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 06/15/11 ordering this action is summarily dismissed. The court declines to issue a certificate of appealability. The clerk of the court is directed to enter judgment and close the file. CASE CLOSED. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MELVIN WALKER,
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No. CIV S-11-0987-CMK-P
Petitioner,
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vs.
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G. SWARTHOUT,
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ORDER
Respondent.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole. Petitioner has
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consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has
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been served or appeared in the action. Pending before the court is petitioner’s petition (Doc. 1)
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and response to the court’s May 11, 2011, order to show cause (Doc. 8).
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Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary
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dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any
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exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In this
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case, the court directed petitioner to show cause in writing why this petition should not be
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summarily dismissed in light of the United States Supreme Court’s ruling in Swarthout v. Cooke,
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562 U.S. ___, 131 S. Ct. 859, 862 (9th Cir. 2011) (per curiam). In his response, petitioner asserts
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that he was not provided the minimal protections outlined in Swarthout because, in the context of
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the Governor’s decision to review a parole grant recommendation from the Parole Board, he was
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not provided notice or an opportunity to be heard. Given that the Supreme Court’s decision in
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Swarthout was a consolidated decision addressing both a Parole Board denial as well as a
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Governor’s reversal of a Parole Board grant of parole, the distinction petitioner puts forward as a
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reason for this court to exercise jurisdiction is of no consequence.
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Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the
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court has considered whether to issue a certificate of appealability. Before petitioner can appeal
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this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.
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22(b). Where the petition is denied on the merits, a certificate of appealability may issue under
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28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a
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constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of
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appealability indicating which issues satisfy the required showing or must state the reasons why
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such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed
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on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1)
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‘that jurists of reason would find it debatable whether the district court was correct in its
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procedural ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition
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states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775,
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780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)).
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For the reasons set forth in the May 11, 2011, order to show cause and herein, the court finds that
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issuance of a certificate of appealability is not warranted in this case.
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Accordingly, IT IS HEREBY ORDERED that:
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This action is summarily dismissed;
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The court declines to issue a certificate of appealability; and
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The Clerk of the Court is directed to enter judgment and close this file.
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DATED: June 15, 2011
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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