-JFM (HC) LaFaver v. Singh et al, No. 2:2011cv02229 - Document 7 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 10/12/2011 ORDERING that Clerk shall assign a district judge to this case. Clerk randomly assigned District Judge Garland E. Burrell, Jr. to this matter. RECOMMENDING that 1 Petition for Writ of Habeas Corpus filed by Michael Kenneth LaFaver be dismissed without leave to amend; and that court decline to issue a certificate of appealability. Matter referred to Judge Garland E. Burrell, Jr. Any party may file objections to F&R w/i 14 days after being served. (Waggoner, D)
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-JFM (HC) LaFaver v. Singh et al Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL KENNETH LaFAVER, Petitioner, 11 12 vs. 13 No. 2:11-cv-2229 JFM (HC) V. SINGH, et al., 14 15 16 17 18 ORDER AND Respondents. FINDINGS & RECOMMENDATIONS / Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 19 dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to 20 it that the petitioner is not entitled to relief in the district court ....” Rule 4 of the Rules 21 Governing Section 2254 Cases. The court must summarily dismiss a petition “[i]f it plainly 22 appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 23 the district court....” Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see 24 also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a 25 petition (1) specify all grounds of relief available to the Petitioner; (2) state the facts supporting 26 each ground; and (3) state the relief requested. Notice pleading is not sufficient; rather, the 1 Dockets.Justia.com 1 petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory 2 Committee Notes, 1976 Adoption; O'Bremski, 915 F.2d at 420. Allegations in a petition that are 3 vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 4 F.2d at 491. Further, the Advisory Committee Notes to Rule 8 indicate that the court may 5 6 dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to 7 the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory 8 Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039 (9th Cir. 9 2001). Federal habeas corpus relief is not available for any claim decided on the merits 10 11 in state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 12 13 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 14 15 16 28 U.S.C. § 2254(d). Under section 2254(d)(1), a state court decision is “contrary to” clearly 17 18 established United States Supreme Court precedents if it applies a rule that contradicts the 19 governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially 20 indistinguishable from a decision of the Supreme Court and nevertheless arrives at different 21 result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 22 (2000)). 23 Under the “unreasonable application” clause of section 2254(d)(1), a federal 24 habeas court may grant the writ if the state court identifies the correct governing legal principle 25 from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the 26 prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ 2 1 simply because that court concludes in its independent judgment that the relevant state-court 2 decision applied clearly established federal law erroneously or incorrectly. Rather, that 3 application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 4 (2003) (it is “not enough that a federal habeas court, in its independent review of the legal 5 question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”). 6 The Due Process Clause of the Fourteenth Amendment prohibits state action that 7 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 8 due process violation must first demonstrate that he was deprived of a liberty or property interest 9 protected by the Due Process Clause and then show that the procedures attendant upon the 10 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 11 490 U.S. 454, 459-60 (1989). 12 A protected liberty interest may arise from either the Due Process Clause of the 13 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 14 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 15 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). 16 The United States Constitution does not, of its own force, create a protected liberty interest in a 17 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 18 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 19 inherent right of a convicted person to be conditionally released before the expiration of a valid 20 sentence.”). However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a 21 presumption that parole release will be granted’ when or unless certain designated findings are 22 made, and thereby gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12. 23 See also Allen, 482 U.S. at 376-78. 24 California’s parole statutes give rise to a liberty interest in parole protected by the 25 federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 26 197627, at *2 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless 3 1 there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 2 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in 3 Swarthout the United States Supreme Court held that “[n]o opinion of [theirs] supports 4 converting California’s ‘some evidence’ rule into a substantive federal requirement.” Swarthout, 5 2011 WL 197627, at *3. Rather, the protection afforded by the federal due process clause to 6 California parole decisions consists solely of the “minimal” procedural requirements set forth in 7 Greenholtz, specifically “an opportunity to be heard and . . . a statement of the reasons why 8 parole was denied.” Id. at *2-3. 9 In the petition pending before this court, it is evident that on May 4, 2010, 10 petitioner appeared at and participated in a parole consideration hearing before the Board of 11 Parole Hearings (“the Board”). See Pet. at 6. Following deliberations held at the conclusion of 12 the hearing, the Board announced their decision to deny petitioner parole and the reasons for that 13 decision. See id. at 14-15 (Cal. Ct. App. Op., Case No. D058679). Thus, petitioner received all 14 of the due process required pursuant to Swarthout. To the extent petitioner seeks relief on the 15 ground that his parole denial was arbitrary, this argument is foreclosed by Swarthout. 16 Unless a circuit justice or judge issues a certificate of appealability, an appeal 17 may not be taken to the Court of Appeals from the final order in a habeas proceeding in which 18 the detention complained of arises out of process issued by a state court. 28 U.S.C. § 19 2253(c)(1)(A); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability 20 may issue only if the applicant makes a substantial showing of the denial of a constitutional 21 right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could 22 debate whether the petition should have been resolved in a different manner or that the issues 23 presented were adequate to deserve encouragement to proceed further. Miller–El v. Cockrell, 24 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should 25 issue if the petitioner shows that jurists of reason would find it debatable whether the petition 26 states a valid claim of the denial of a constitutional right and that jurists of reason would find it 4 1 debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 2 529 U.S. 473, 483–84 (2000). In determining this issue, a court conducts an overview of the 3 claims in the habeas petition, generally assesses their merits, and determines whether the 4 resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to 5 show more than an absence of frivolity or the existence of mere good faith; however, it is not 6 necessary for an applicant to show that the appeal will succeed. Miller–El v. Cockrell, 537 U .S. 7 at 338. A district court must issue or deny a certificate of appealability when it enters a 8 9 final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. 10 Here, it does not appear that reasonable jurists could debate whether the petition 11 should have been resolved in a different manner. Petitioner has not made a substantial showing 12 of the denial of a constitutional right. Accordingly, the court should decline to issue a certificate 13 of appealability. Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a district 14 15 judge to this case; 16 IT IS HEREBY RECOMMENDED that: 17 1. Petitioner’s petition for a writ of habeas corpus be dismissed without leave to 18 amend; and 19 2. The court decline to issue a certificate of appealability. 20 These findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 22 days after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 25 objections shall be filed and served within fourteen days after service of the objections. The 26 ///// 5 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: October 12, 2011. 4 5 6 7 /014;lafa2229.114 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6
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