-KJN (HC) Watkins v. Monday, No. 2:2011cv01327 - Document 7 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/23/11 ORDERING that Petitioner's application to proceed in forma pauperis is granted; and The Clerk of the Court is directed to assign a district judge to this case; and RECOMMENDING that petitioner's application for writ of habeas corpus be DENIED. Referred to Judge Garland E. Burrell, Jr; Objections due within 21 days after being served with these findings and recommendations. (Becknal, R)
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-KJN (HC) Watkins v. Monday Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 NOEL WATKINS, 11 12 13 14 Petitioner, vs. RICK MONDAY, et al., ORDER AND Respondents. 15 16 No. 2:11-cv-1327 KJN P FINDINGS AND RECOMMENDATIONS / Petitioner, a state prisoner proceeding without counsel, has filed an application for 17 a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in 18 forma pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable 20 to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be 21 granted. See 28 U.S.C. § 1915(a). 22 Petitioner raises various claims that his federal constitutional right to due process 23 was violated by the April 8, 2010 decision of the California Board of Parole Hearings (hereafter 24 “the Board”) to deny petitioner a parole date. 25 26 The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a 1 Dockets.Justia.com 1 due process violation must first demonstrate that he was deprived of a liberty or property interest 2 protected by the Due Process Clause and then show that the procedures attendant upon the 3 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 4 490 U.S. 454, 459-60 (1989). 5 A protected liberty interest may arise from either the Due Process Clause of the 6 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 7 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 8 221 (2005) (citations omitted). The United States Constitution does not, of its own force, create 9 a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 10 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no 11 constitutional or inherent right of a convicted person to be conditionally released before the 12 expiration of a valid sentence.”). However, “a state’s statutory scheme, if it uses mandatory 13 language, ‘creates a presumption that parole release will be granted’ when or unless certain 14 designated findings are made, and thereby gives rise to a constitutional liberty interest.” 15 Greenholtz, 442 U.S. at 12; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a 16 state’s use of mandatory language (“shall”) creates a presumption that parole release will be 17 granted when the designated findings are made.). 18 California’s parole statutes give rise to a liberty interest in parole protected by the 19 federal due process clause. Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011). In California, a 20 prisoner is entitled to release on parole unless there is “some evidence” of his or her current 21 dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 22 Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that 23 “[n]o opinion of [theirs] supports converting California’s ‘some evidence’ rule into a substantive 24 federal requirement.” Swarthout, 131 S. Ct. at 862. In other words, the Court specifically 25 rejected the notion that there can be a valid claim under the Fourteenth Amendment for 26 insufficiency of evidence presented at a parole proceeding. Id. at 862-63. Rather, the protection 2 1 afforded by the federal due process clause to California parole decisions consists solely of the 2 “minimal” procedural requirements set forth in Greenholtz, specifically “an opportunity to be 3 heard and . . . a statement of the reasons why parole was denied.” Swarthout, 131 S. Ct. at 862- 4 63. 5 Here, the record reflects that petitioner was present at the 2010 parole hearing, 6 that he participated in the hearing, and that he was provided with the reasons for the Board’s 7 decision to deny parole. (Dkt. No. 5 at 92 - Dkt. No. 5-1 at 44.) According to the United States 8 Supreme Court, the federal due process clause requires no more. Therefore, petitioner’s 9 application for a writ of habeas corpus should be denied. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Petitioner’s application to proceed in forma pauperis is granted; and 12 2. The Clerk of the Court is directed to assign a district judge to this case; 13 IT IS RECOMMENDED that petitioner’s application for writ of habeas corpus be 14 denied. 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 twenty- 17 one days after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files 20 objections, he shall also address whether a certificate of appealability should issue and, if so, why 21 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 22 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 23 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 24 service of the objections. The parties are advised that failure to file objections within the 25 //// 26 //// 3 1 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 DATED: June 23, 2011 4 5 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 6 7 watk1327.157 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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