(HC) Clutchette v. Adams, et al., No. 1:2009cv02008 - Document 31 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the Petition for Failure to State a Claim Cognizable Pursuant to 28 U.S.C. § 2254 1 , 2 ; FINDINGS and RECOMMENDATIONS to Dismiss Petitioner's Motion for Discovery as Moot 4 , signed by Magistrate Judge Sheila K. Oberto on 2/7/11: Petition and Motion for Discovery referred to Judge Wanger. (Hellings, J)
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(HC) Clutchette v. Adams, et al. Doc. 31 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 JOHN CLUTCHETTE, 9 10 11 12 13 14 ) ) Petitioner, ) ) v. ) ) DERRAL G. ADAMS, Warden of ) Corcoran State Prison, et al.,) ) Respondents. ) ) ) 1:09-cv—02008-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO STATE A CLAIM COGNIZABLE PURSUANT TO 28 U.S.C. § 2254 (DOC. 1) FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER’S MOTION FOR DISCOVERY AS MOOT (DOC. 4) OBJECTIONS DUE: THIRTY (30) DAYS AFTER SERVICE 15 16 Petitioner is a state prisoner proceeding with counsel with 17 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 18 2254. The matter has been referred to the Magistrate Judge 19 pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. 20 Pending before the Court is the petition, which was filed on 21 October 30, 2009 (doc. 1). 22 I. Background 23 Petitioner alleges that California’s Board of Parole 24 Hearings (BPH) violated his right to due process of law 25 guaranteed by the Fourteenth Amendment when on July 17, 2007, the 26 BPH sitting en banc disapproved a hearing panel’s earlier finding 27 that Petitioner was suitable for parole. Petitioner alleges that 28 1 Dockets.Justia.com 1 his state-created liberty interest in parole arising under Cal. 2 Pen. Code § 3041 was infringed because the en banc board’s 3 finding that the hearing panel committed fundamental error (i.e., 4 that Petitioner was unsuitable) was not supported by any evidence 5 that rationally supported the findings that the board had to make 6 to warrant a rescission of parole pursuant to Cal. Pen. Code § 7 3041(b) and Cal. Code Regs. tit. 15, §§ 2450, 2451(c). 8 Petitioner likewise contends that the same defects were present 9 in the decision of the California Supreme Court upholding the 10 board’s decision, and thus, those decisions were unreasonable 11 applications of clearly established federal law. 12 Specifically, Petitioner contended that the board and the 13 California courts reviewing the board’s decision improperly 14 relied on information from confidential informants within the 15 prison. 16 for the state courts to refuse to let Petitioner’s attorney 17 review the confidential information during the course of the 18 state court proceedings. 19 (Pet. 5, 7-12.) He further argues that it was a denial of due process (Pet. 11-12.) Respondent answered the petition on September 10, 2010, 20 admitting that Petitioner has exhausted his state judicial 21 remedies with respect to his claims that the 2007 decision 22 violated his due process rights and that the Superior Court had 23 erred in considering the confidential information under seal, and 24 further admitting that the petition is timely under 28 U.S.C. § 25 2244(d)(1). 26 October 29, 2010. (Ans. [doc. 24], 3.) Petitioner filed a traverse on 27 The record before the Court reflects that Petitioner was 28 present at the August 20, 2003, hearing when the hearing panel of 2 1 the BPH found Petitioner suitable for parole. 2 2-5], 1-2.) 3 confidence in his counsel’s work and did not want to delay the 4 hearing. 5 questions, and he made a statement to the hearing panel. 6 7-8, 12-52.) 7 for parole and stated its reasoning; Petitioner was granted 8 parole pending review and approval. 9 (Pet. Ex. B [doc. Petitioner represented himself because he lacked Petitioner responded to the panel’s statements and (Id. at The panel concluded that Petitioner was suitable (Id. 53-60.) The BPH sat en banc on October 15, 2003, considered and 10 disapproved the August 2003 proposed decision of the panel, and 11 found rehearing necessary because the hearing panel did not 12 consider confidential material in Petitioner’s central file, 13 Petitioner’s mental health evaluations, and the prisoner’s life 14 prisoner evaluations. 15 (Pet. Ex. C [doc. 2-6], 1.)1 After successfully challenging in state court the first 16 disapproval by the en banc board, Petitioner was given a second 17 en banc review on July 17, 2007. 18 disapproved the decision in favor of parole that had been made by 19 the panel at the hearing in 2003. 20 DECISION,” the full board explained that the decision to 21 disapprove the grant of parole was based on errors of fact made 22 by the hearing panel in not considering confidential information 23 and minimizing the jury’s decision, the gravity of the crime, and The full board again In a written “MISCELLANEOUS 24 1 25 26 27 28 Under state law, the BPH has the authority to decide whether a life prisoner is suitable for parole; all decisions of a panel of the BPH are only proposed decisions which are subject to review by the full board upon referral by a member of the panel, and the full board determines by majority vote following a public hearing whether the panel made an error of law or fact, or if new information should be presented that has a substantial likelihood of resulting in a substantially different decision upon rehearing. Cal. Pen. Code §§ 3040, 3041; 15 Cal. Code Regs. §§ 2042-2044, 2253-64, 2268, 2281, 2402. 3 1 Petitioner’s psychological status. 2 The errors rendered it substantially likely that a substantially 3 different decision would be made upon rehearing. 4 The decision included in the record submitted by Petitioner in 5 support of the petition appears to be stamped “INMATE COPY.” 6 (Id. at 1.) 7 petitions for writ relief, Petitioner filed the instant petition. 8 9 (Pet. Ex. F [doc. 2-9], 1-6.) (Id. at 1.) After the California courts rejected Petitioner’s Further, Petitioner filed a motion for discovery on October 30, 2009. Respondent filed an opposition on October 13, 2010, 10 and Petitioner filed a reply on October 27, 2010. 11 Petitioner seeks 1) copies of all materials in the confidential 12 file on which California’s BPH relied in 2007 in rescinding the 13 earlier decision of the BPH panel that found Petitioner suitable 14 for parole, and 2) one hundred (100) randomly selected 15 transcripts of parole suitability hearings for life prisoners 16 conducted in California in 2003. In the motion, 17 II. 18 Because the petition was filed after April 24, 1996, the Legal Standards 19 effective date of the Antiterrorism and Effective Death Penalty 20 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 21 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 22 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 23 Lindh The Court may dismiss a petition for writ of habeas corpus 24 either on its own motion under Habeas Rule 4, pursuant to the 25 respondent's motion to dismiss, or after an answer to the 26 petition has been filed. 27 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 28 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 4 1 A district court may entertain a petition for a writ of 2 habeas corpus by a person in custody pursuant to the judgment of 3 a state court only on the ground that the custody is in violation 4 of the Constitution, laws, or treaties of the United States. 5 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 6 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 7 16 (2010) (per curiam). 8 9 28 The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that 10 California law creates a liberty interest in parole protected by 11 the Fourteenth Amendment Due Process Clause, which in turn 12 requires fair procedures with respect to the liberty interest. 13 Swarthout v. Cooke, 562 U.S. –, – S.Ct. -, 2011 WL 197627, *2 14 (No. 10-133, Jan. 24, 2011). 15 However, the procedures required for a parole determination 16 are the minimal requirements set forth in Greenholtz v. Inmates 17 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).2 18 Swarthout v. Cooke, 2011 WL 197627, *2. 19 rejected inmates’ claims that they were denied a liberty interest In Swarthout, the Court 20 2 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 because there was an absence of “some evidence” to support the 2 decision to deny parole. 3 4 5 6 7 8 9 10 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.) 11 Swarthout, 2011 WL 197627, *2. 12 petitioners had received the process that was due under the 13 following circumstances: 14 15 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 as to the reasons why parole was denied.... 16 17 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 18 Swarthout, 2011 WL 197627, *3. The Court in Swarthout expressly 19 noted that California’s “some evidence” rule is not a substantive 20 federal requirement, and correct application of California’s 21 “some evidence” standard is not required by the Due Process 22 Clause of the Fourteenth Amendment. Id. at *3. 23 III. Analysis 24 Here, Petitioner challenges directly the decision of the BPH 25 sitting en banc in which the board reviewed a panel decision. 26 However, a review of Petitioner’s allegations and arguments 27 reflects that Petitioner’s essential claim is that California’s 28 6 1 “some evidence” standard was erroneously applied in his case. 2 is precisely this type of challenge to the application of 3 California’s parole laws that Swarthout determined is not 4 cognizable on federal habeas corpus. 5 *3. 6 substantive federal requirement, Petitioner has not stated facts 7 that point to a real possibility of constitutional error or that 8 otherwise would entitle Petitioner to habeas relief. 9 It Swarthout, 2011 WL 197627, Because California’s “some evidence” requirement is not a Further, the record before the Court demonstrates that 10 Petitioner received a hearing, was present at the hearing, and 11 made statements to the board with respect to the suitability 12 decision. 13 the decision in question. 14 received all the process he was due with respect to the 15 determination of his suitability. 16 Petitioner also received a statement of reasons for The record thus shows that Petitioner Petitioner’s claim concerning the use of confidential 17 information constitutes yet another form of challenge to the 18 adequacy of the information supporting the decision regarding 19 suitability and thus is not cognizable. 20 The petitioner in Swarthout argued that the greater 21 procedural protections afforded to the revocation of good-time 22 credits in prison should apply, and thus a court should determine 23 whether some evidence supported a decision declining to grant a 24 prisoner discretionary parole. 25 However, the Court reiterated that the question of what due 26 process requirements apply is a matter of federal law, and 27 rejected an effort to pronounce California’s “some evidence” rule 28 to be a component of the liberty interest itself. Swarthout, 2011 WL *3, n.*. 7 Id. at *3. 1 This Court further notes that even in the context of prison 2 disciplinary proceedings, the use of confidential information 3 does not offend procedural due process where the remainder of the 4 proceedings includes written notice of the charges and a 5 statement of the evidence relied on and the reasons for the 6 disciplinary action. 7 1987); see also, Ponte v. Real, 471 U.S. 491, 499-500 (1985) 8 (appearing to approve in the first instance a prison official’s 9 in camera presentation to a court of a security-based Zimmerlee v. Keeney, 831 F.2d 183 (9th Cir. 10 justification for failing to permit an inmate to call witnesses 11 at a disciplinary hearing). 12 To the extent that Petitioner’s claim rests on state law, it 13 is not cognizable on federal habeas corpus. 14 relief is not available to retry a state issue that does not rise 15 to the level of a federal constitutional violation. 16 Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. 17 McGuire, 502 U.S. 62, 67-68 (1991). 18 application of state law are not cognizable in federal habeas 19 corpus. 20 Federal habeas Wilson v. Alleged errors in the Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). Accordingly, Petitioner’s claim or claims concerning the 21 adequacy of the evidence to support the BPH’s decision and the 22 propriety of the BPH’s consideration of confidential information 23 do not state a violation of due process of law or other basis for 24 habeas relief. 25 The Court notes that Petitioner does not allege that the 26 procedures used for determination of his suitability for parole 27 were deficient because of the absence of an opportunity to be 28 heard or a statement of reasons for the ultimate decision 8 1 reached. 2 recitations and assertions that appear in the transcript of the 3 parole proceedings and other documentation attached to the 4 petition, which reflect that although Petitioner voluntarily 5 declined to have the representation of counsel, he attended the 6 hearing, made statements to the board, and received a statement 7 of reasons for the decision. Further, Petitioner does not contradict the factual 8 It therefore appears from the face of the petition and the 9 attached, uncontradicted documentation, that the recommendation 10 of parole was not rejected without the requisite due process of 11 law. 12 relief could be pleaded were Petitioner granted leave to amend 13 the petition. 14 1971). 15 The Court further concludes that no tenable claim for See, Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. Accordingly, it will be recommended that the petition be 16 dismissed without leave to amend for the failure to allege facts 17 that point to a real possibility of constitutional error or that 18 would otherwise entitle Petitioner to habeas relief. 19 20 Further, in light of the absence of a cognizable claim, Petitioner’s motion for discovery should be dismissed as moot. 21 IV. 22 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 23 appealability, an appeal may not be taken to the Court of Appeals 24 from the final order in a habeas proceeding in which the 25 detention complained of arises out of process issued by a state 26 court. 27 U.S. 322, 336 (2003). 28 only if the applicant makes a substantial showing of the denial 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 9 1 of a constitutional right. 2 petitioner must show that reasonable jurists could debate whether 3 the petition should have been resolved in a different manner or 4 that the issues presented were adequate to deserve encouragement 5 to proceed further. 6 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 7 certificate should issue if the Petitioner shows that jurists of 8 reason would find it debatable whether the petition states a 9 valid claim of the denial of a constitutional right and that § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A 10 jurists of reason would find it debatable whether the district 11 court was correct in any procedural ruling. 12 529 U.S. 473, 483-84 (2000). 13 conducts an overview of the claims in the habeas petition, 14 generally assesses their merits, and determines whether the 15 resolution was debatable among jurists of reason or wrong. 16 It is necessary for an applicant to show more than an absence of 17 frivolity or the existence of mere good faith; however, it is not 18 necessary for an applicant to show that the appeal will succeed. 19 Miller-El v. Cockrell, 537 U.S. at 338. Slack v. McDaniel, In determining this issue, a court 20 A district court must issue or deny a certificate of 21 appealability when it enters a final order adverse to the 22 applicant. Id. 23 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 24 debate whether the petition should have been resolved in a 25 different manner. 26 of the denial of a constitutional right. 27 should decline to issue a certificate of appealability. 28 /// Petitioner has not made a substantial showing 10 Accordingly, the Court 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 on habeas corpus; and 6 7 2) 3) appealability; and 10 11 The Court DECLINE to issue a certificate of and 8 9 The pending motion for discovery be DISMISSED as moot; 3) The Clerk be DIRECTED to close the action because this order terminates the proceeding in its entirety. 12 These findings and recommendations are submitted to the 13 United States District Court Judge assigned to the case, pursuant 14 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 15 the Local Rules of Practice for the United States District Court, 16 Eastern District of California. 17 being served with a copy, any party may file written objections 18 with the Court and serve a copy on all parties. 19 should be captioned “Objections to Magistrate Judge’s Findings 20 and Recommendations.” 21 and filed within fourteen (14) days (plus three (3) days if 22 served by mail) after service of the objections. 23 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 24 636 (b)(1)(C). 25 objections within the specified time may waive the right to 26 appeal the District Court’s order. 27 /// 28 /// 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 11 Martinez v. Ylst, 951 F.2d 1 1153 (9th Cir. 1991). 2 3 IT IS SO ORDERED. 4 Dated: ie14hj February 7, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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