-KJN (HC)Closner v. Premo, No. 2:2011cv01531 - Document 5 (E.D. Cal. 2011)

Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/23/11 ORDERING the Clerk of the Court is directed to assign a district judge to this case; Petitioner's 6/7/11 request for appointment of counsel is denied without prejudice; and RECOMMENDING that that petitioner's application for writ of habeas corpus be denied. Referred to Judge John A. Mendez; Objections due within 21 days after being served with these findings and recommendations. (Becknal, R)

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-KJN (HC)Closner v. Premo Doc. 5 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LESLIE CLOSNER, 11 12 13 Petitioner, No. 2:11-cv-1531 KJN P vs. J. PREMO, 14 ORDER AND Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 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. Petitioner has paid the filing fee. 18 Petitioner raises three claims that his federal constitutional right to due process was violated by a 19 2009 decision of the California Board of Parole Hearings (hereafter “the Board”) to deny him a 20 parole date. 21 The Due Process Clause of the Fourteenth Amendment prohibits state action that 22 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 23 due process violation must first demonstrate that he was deprived of a liberty or property interest 24 protected by the Due Process Clause and then show that the procedures attendant upon the 25 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 26 490 U.S. 454, 459-60 (1989). 1 Dockets.Justia.com 1 A protected liberty interest may arise from either the Due Process Clause of the 2 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 3 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 4 221 (2005) (citations omitted). The United States Constitution does not, of its own force, create 5 a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 6 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no 7 constitutional or inherent right of a convicted person to be conditionally released before the 8 expiration of a valid sentence.”). However, “a state’s statutory scheme, if it uses mandatory 9 language, ‘creates a presumption that parole release will be granted’ when or unless certain 10 designated findings are made, and thereby gives rise to a constitutional liberty interest.” 11 Greenholtz, 442 U.S. at 12; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a 12 state’s use of mandatory language (“shall”) creates a presumption that parole release will be 13 granted when the designated findings are made.). 14 California’s parole statutes give rise to a liberty interest in parole protected by the 15 federal due process clause. Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011). In California, a 16 prisoner is entitled to release on parole unless there is “some evidence” of his or her current 17 dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 18 Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that 19 “[n]o opinion of [theirs] supports converting California’s ‘some evidence’ rule into a substantive 20 federal requirement.” Swarthout, 131 S. Ct. at 862. In other words, the Court specifically 21 rejected the notion that there can be a valid claim under the Fourteenth Amendment for 22 insufficiency of evidence presented at a parole proceeding. Id. at 862-63. Rather, the protection 23 afforded by the federal due process clause to California parole decisions consists solely of the 24 “minimal” procedural requirements set forth in Greenholtz, specifically “an opportunity to be 25 heard and . . . a statement of the reasons why parole was denied.” Swarthout, 131 S. Ct. at 862- 26 63. 2 1 Here, the record reflects that petitioner was present at the 2009 parole hearing, 2 that he participated in the hearing, and that he was provided with the reasons for the Board’s 3 decision to deny parole. (Dkt. No. 1-1 at 68-76.) According to the United States Supreme Court, 4 the federal due process clause requires no more. Therefore, petitioner’s application for a writ of 5 habeas corpus should be denied. 6 In addition, petitioner requested the appointment of counsel. There currently 7 exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 8 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of 9 counsel at any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. 10 Governing § 2254 Cases. In the present case, the court does not find that the interests of justice 11 would be served by the appointment of counsel. 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. The Clerk of the Court is directed to assign a district judge to this case; 14 2. Petitioner’s June 7, 2011 request for appointment of counsel is denied without 15 prejudice; and 16 17 IT IS RECOMMENDED that petitioner’s application for writ of habeas corpus be denied. 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 twenty- 20 one days after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files 23 objections, he shall also address whether a certificate of appealability should issue and, if so, why 24 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 25 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 26 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 3 1 service of the objections. The parties are advised that failure to file objections within the 2 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 3 F.2d 1153 (9th Cir. 1991). 4 DATED: June 23, 2011 5 6 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 7 8 clos1531.157 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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