(HC) Woods v. Hartley, No. 1:2009cv01501 - Document 13 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that The Petition for Writ of Habeas Corpus be DISMISSED without leave to amend because Petitioner has failed to state a claim cognizable; Court DECLINE to ISSUE a CERTIFICATE of APPEALABILITY; Clerk DIRECTED to CLOSE the action because this order terminates the proceeding in its entirety;re 1 Petition for Writ of Habeas Corpus filed by Keith Woods ; referred to Judge Wanger, signed by Magistrate Judge Sheila K. Oberto on 03/04/2011. Objections to F&R due by 4/11/2011 (Martin, S)
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(HC) Woods v. Hartley Doc. 13 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 KEITH WOODS, 11 Petitioner, 12 v. 13 JAMES D. HARTLEY, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01501-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS 16 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 The matter has been referred to the Magistrate Judge pursuant to 20 28 U.S.C.§ 636(b)(1) and Local Rules 72-302 and 72-304. 21 before the Court is the petition, which was filed on August 26, 22 2009. 23 Petitioner filed a traverse on August 19, 2010. Pending Respondent filed an answer on July 29, 2010, and 24 I. 25 Rule 4 of the Rules Governing § 2254 Cases in the United Consideration of Dismissal of the Petition 26 States District Courts (Habeas Rules) requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. 28 The Court must summarily dismiss a petition "[i]f it plainly 1 Dockets.Justia.com 1 appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court....” 3 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 4 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 5 1990). 6 grounds of relief available to the Petitioner; 2) state the facts 7 supporting each ground; and 3) state the relief requested. 8 Notice pleading is not sufficient; rather, the petition must 9 state facts that point to a real possibility of constitutional Habeas Rule 2(c) requires that a petition 1) specify all 10 error. 11 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 12 Allison, 431 U.S. 63, 75 n.7 (1977)). 13 that are vague, conclusory, or palpably incredible are subject to 14 summary dismissal. 15 Cir. 1990). 16 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 17 corpus either on its own motion under Habeas Rule 4, pursuant to 18 the respondent's motion to dismiss, or after an answer to the 19 petition has been filed. 20 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 21 (9th Cir. 2001). 22 Advisory Committee Notes to Habeas Rule Here, Respondent answered the petition on July 29, 2010, and 23 Petitioner filed a traverse on August 19, 2010. 24 the United States Supreme Court decided Swarthout v. Cooke, 562 25 U.S. –, 131 S.Ct. 859, 861-62 (2011). 26 to govern the instant case, and because no motion to dismiss the 27 petition has been filed, the Court proceeds to consider whether 28 the petition states a cognizable claim for relief. 2 Subsequently, Because Swarthout appears 1 II. 2 Petitioner alleges that he is an inmate of Avenal State Background 3 Prison who is serving a sentence of twenty (20) years to life 4 imposed in the Los Angeles County Superior Court upon 5 Petitioner’s 1989 conviction of second degree murder and assault 6 with a deadly weapon. 7 decision of the California Board of Parole Hearings (BPH) finding 8 Petitioner unsuitable for parole and also argues that the state 9 courts’ decisions upholding the board’s denial of parole were (Pet. 1.) Petitioner challenges a 10 objectively unreasonable. 11 decision in question followed a hearing held before the BPH on 12 December 3, 2008. 13 (Pet. 4-12.) It appears that the (Pet. 7.) It appears from the transcript of the hearing submitted by 14 Respondent with the answer that Petitioner attended the parole 15 hearing before the Board on December 3, 2008. 16 11-1], 28.) 17 behalf of Petitioner. 18 81-83.) 19 factors and personally made a statement. (Ans., Ex. A (doc. 11- 20 4], 40-78, 83-85.) 21 for the BPH’s grant of parole. 22 35.) 23 (Ans., Ex. A [doc. Petitioner was represented by counsel, who spoke on (Id. at 28, 36; Ex. A [doc. 11-4], 34, 39, Petitioner spoke to the Board about various suitability Petitioner was given a statement of reasons (Ans., Ex. A [doc. 11-1], 30-36, Petitioner asks this Court to review whether there was some 24 evidence to support the conclusion that Petitioner was unsuitable 25 for parole because he posed a current threat of danger to the 26 public if released. 27 claims: 28 did not receive an individualized consideration by the BPH of the (Pet. 4-5.) Petitioner raises the following 1) his right to due process of law was violated when he 3 1 criteria for release on parole, including Petitioner’s 2 rehabilitation and current risk of danger; 2) his right to due 3 process of law was violated because the immutable factors relied 4 on by the state court did not constitute “some evidence”; 3) the 5 BPH failed to create a nexus between Petitioner’s commitment 6 offense and his current dangerousness, and thus there was an 7 absence of “some evidence” to support a finding of a threat to 8 public safety; and 4) the board failed to demonstrate that the 9 commitment offense was atrocious and cruel. (Pet. 4-5.) 10 III. 11 Because the petition was filed after April 24, 1996, the Failure to Allege a Claim Cognizable on Habeas Corpus 12 effective date of the Antiterrorism and Effective Death Penalty 13 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 14 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 15 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 16 A district court may entertain a petition for a writ of 17 habeas corpus by a person in custody pursuant to the judgment of 18 a state court only on the ground that the custody is in violation 19 of the Constitution, laws, or treaties of the United States. 28 20 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 21 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 22 16 (2010) (per curiam). 23 Lindh The Supreme Court has characterized as reasonable the 24 decision of the Court of Appeals for the Ninth Circuit that 25 California law creates a liberty interest in parole protected by 26 the Fourteenth Amendment Due Process Clause, which in turn 27 requires fair procedures with respect to the liberty interest. 28 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 4 1 However, the procedures required for a parole determination 2 are the minimal requirements set forth in Greenholtz v. Inmates 3 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 4 Swarthout v. Cooke, 131 S.Ct. 859, 862. 5 rejected inmates’ claims that they were denied a liberty interest 6 because there was an absence of “some evidence” to support the 7 decision to deny parole. 8 9 10 11 12 13 14 15 In Swarthout, the Court The Court stated: There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) 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. In Greenholtz, we found that a prisoner subject to a parole statute similar to California’s received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.) 16 Swarthout, 131 S.Ct. 859, 862. 17 petitioners had received the process that was due as follows: 18 19 The Court concluded that the They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified 20 1 21 22 23 24 25 26 27 28 In Greenholtz, the Court held that a formal hearing is not required with respect to a decision concerning granting or denying discretionary parole; it is sufficient to permit the inmate to have an opportunity to be heard and to be given a statement of reasons for the decision made. Id. at 16. The decision maker is not required to state the evidence relied upon in coming to the decision. Id. at 15-16. The Court reasoned that because there is no constitutional or inherent right of a convicted person to be released conditionally before expiration of a valid sentence, the liberty interest in discretionary parole is only conditional and thus differs from the liberty interest of a parolee. Id. at 9. Further, the discretionary decision to release one on parole does not involve restrospective factual determinations, as in disciplinary proceedings in prison; instead, it is generally more discretionary and predictive, and thus procedures designed to elicit specific facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due process was satisfied where the inmate received a statement of reasons for the decision and had an effective opportunity to insure that the records being considered were his records, and to present any special considerations demonstrating why he was an appropriate candidate for parole. Id. at 15. 5 1 as to the reasons why parole was denied.... 2 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 3 4 Swarthout, 131 S.Ct. at 862. 5 noted that California’s “some evidence” rule is not a substantive 6 federal requirement, and correct application of California’s 7 “some evidence” standard is not required by the federal Due 8 Process Clause. 9 The Court in Swarthout expressly Id. at 862-63. Here, Petitioner challenges the sufficiency and the weight 10 of the evidence as determined by the BPH and the state courts. 11 Petitioner asks this Court to engage in the very type of analysis 12 foreclosed by Swarthout. 13 point to a real possibility of constitutional error or that 14 otherwise would entitle Petitioner to habeas relief because 15 California’s “some evidence” requirement is not a substantive 16 federal requirement. 17 support the denial of parole is not within the scope of this 18 Court’s habeas review under 28 U.S.C. § 2254. 19 Petitioner does not state facts that Review of the record for “some evidence” to Petitioner’s claim that he did not receive a sufficiently 20 individualized consideration of the factors appropriate under 21 California law is likewise not cognizable. 22 process to which Petitioner is entitled does not include any 23 particular degree of individualized consideration. 24 The minimal due Petitioner cites state law concerning the appropriate weight 25 to be given to evidence. 26 or claims rest on state law, they are not cognizable on federal 27 habeas corpus. 28 state issue that does not rise to the level of a federal To the extent that Petitioner’s claim Federal habeas relief is not available to retry a 6 1 constitutional violation. 2 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 3 (1991). 4 cognizable in federal habeas corpus. 5 616, 623 (9th Cir. 2002). Wilson v. Corcoran, 562 U.S. — , 131 Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d 6 A petition for habeas corpus should not be dismissed without 7 leave to amend unless it appears that no tenable claim for relief 8 can be pleaded were such leave granted. 9 F.2d 13, 14 (9th Cir. 1971). 10 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition that 11 Petitioner attended the parole suitability hearing, made 12 statements to the BPH, was represented by counsel, and received a 13 statement of reasons for the decisions of the BPH and the 14 governor. 15 had an opportunity to be heard and a statement of reasons for the 16 decisions in question. 17 Petitioner could state a tenable due process claim. 18 19 Thus, Petitioner’s own allegations establish that he It therefore does not appear that Accordingly, it will be recommended that the petition be dismissed without leave to amend. 20 IV. 21 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 22 appealability, an appeal may not be taken to the Court of Appeals 23 from the final order in a habeas proceeding in which the 24 detention complained of arises out of process issued by a state 25 court. 26 U.S. 322, 336 (2003). 27 only if the applicant makes a substantial showing of the denial 28 of a constitutional right. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). 7 Under this standard, a 1 petitioner must show that reasonable jurists could debate whether 2 the petition should have been resolved in a different manner or 3 that the issues presented were adequate to deserve encouragement 4 to proceed further. 5 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 6 certificate should issue if the Petitioner shows that jurists of 7 reason would find it debatable whether the petition states a 8 valid claim of the denial of a constitutional right and that 9 jurists of reason would find it debatable whether the district Miller-El v. Cockrell, 537 U.S. at 336 A 10 court was correct in any procedural ruling. 11 529 U.S. 473, 483-84 (2000). 12 conducts an overview of the claims in the habeas petition, 13 generally assesses their merits, and determines whether the 14 resolution was debatable among jurists of reason or wrong. 15 It is necessary for an applicant to show more than an absence of 16 frivolity or the existence of mere good faith; however, it is not 17 necessary for an applicant to show that the appeal will succeed. 18 Miller-El v. Cockrell, 537 U.S. at 338. Slack v. McDaniel, In determining this issue, a court 19 A district court must issue or deny a certificate of 20 appealability when it enters a final order adverse to the 21 applicant. Id. 22 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 23 debate whether the petition should have been resolved in a 24 different manner. 25 of the denial of a constitutional right. 26 recommended that the Court decline to issue a certificate of 27 appealability. 28 /// Petitioner has not made a substantial showing 8 Accordingly, it will be 1 V. 2 Accordingly, it is RECOMMENDED that: 3 1) Recommendation The petition for writ of habeas corpus be DISMISSED 4 without leave to amend because Petitioner has failed to state a 5 claim cognizable pursuant to 28 U.S.C. § 2254; and 6 7 2) appealability; and 8 9 The Court DECLINE to issue a certificate of 4) The Clerk be DIRECTED to close the action because this order terminates the proceeding in its entirety. 10 These findings and recommendations are submitted to the 11 United States District Court Judge assigned to the case, pursuant 12 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 13 the Local Rules of Practice for the United States District Court, 14 Eastern District of California. 15 being served with a copy, any party may file written objections 16 with the Court and serve a copy on all parties. 17 should be captioned “Objections to Magistrate Judge’s Findings 18 and Recommendations.” 19 and filed within fourteen (14) days (plus three (3) days if 20 served by mail) after service of the objections. 21 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 22 636 (b)(1)(C). 23 objections within the specified time may waive the right to 24 appeal the District Court’s order. 25 1153 (9th Cir. 1991). 26 IT IS SO ORDERED. 27 Dated: ie14hj Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file March 4, 2011 Martinez v. Ylst, 951 F.2d /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 9
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