Hasan v. Swarthout
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 06/24/11 ordering this petition is dismissed. A certificate of appealability is not issued in this action.(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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AHMAD HASAN,
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Petitioner,
No. CIV S-11-1566 GGH P
vs.
GARY SWARTHOUT,
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ORDER
Respondent.
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/
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to petitioner’s
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consent. Doc. 4. Petitioner challenges the 2009 decision by the California Board of Parole
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Hearings (BPH) finding him unsuitable for parole.
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On January 24, 2011, the United States Supreme Court in a per curiam decision
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found that the Ninth Circuit erred in commanding a federal review of the state’s application of
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state law in applying the “some evidence” standard in the parole eligibility habeas context.
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Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 861 (2011). Quoting, inter alia, Estelle v.
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McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed that “‘federal habeas corpus
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relief does not lie for errors of state law.’” Id. While the high court found that the Ninth
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Circuit’s holding that California law does create a liberty interest in parole was “a reasonable
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application of our cases” (while explicitly not reviewing that holding),1 the Supreme Court
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stated:
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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.
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Swarthout v. Cooke, at 862.
Citing Greenholtz,2 the Supreme Court noted it had found under another state’s
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similar parole statute that a prisoner had “received adequate process” when “allowed an
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opportunity to be heard” and “provided a statement of the reasons why parole was denied.”
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Swarthout v. Cooke, at 862. Noting their holding therein that “[t]he Constitution [] does not
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require more,” the justices in the instances before them, found the prisoners had “received at least
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this amount of process: They were allowed to speak at their parole hearings and to contest the
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evidence against them, were afforded access to their records in advance, and were notified as to
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the reasons why parole was denied.” Id.
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The Supreme Court was emphatic in asserting “[t]hat should have been the
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beginning and the end of the federal habeas courts’ inquiry....” Swarthout v. Cooke, at 862. “It
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will not do to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty
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interest....” Id., at 863. “No opinion of ours supports converting California’s “some evidence”
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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.
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Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979).
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rule into a substantive federal requirement.” Id., at 862. The Ninth Circuit recently noted that in
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light of Swarthout v. Cooke, certain Ninth Circuit jurisprudence had been reversed and “there is
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no substantive due process right created by California's parole scheme.” Roberts v. Hartley, ___
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F.3d ____, 2011 WL 1365811, at *3 (9th Cir. Apr.12, 2011).
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Thus, it appears there is no federal due process requirement for a “some evidence”
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review and it also appears that federal courts are precluded from review of the state court’s
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application of its “some evidence” standard.3 As all of petitioner’s claim involve the “some
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evidence” standard, this case is dismissed.
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Accordingly, IT IS HEREBY ORDERED that:
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1. This petition is dismissed;
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2. A certificate of appealability is not issued in this action.
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DATED: June 24, 2011
/s/ Gregory G. Hollows
___________________________________
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
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GGH: AB
hasa1566.parole.scrnII.wpd
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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.
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