(HC) Candelario v. Hartley, No. 1:2010cv00252 - Document 12 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition without Leave to Amend for Failure to State a Cognizable Claim and to Decline to Issue a Certificate of Appealability signed by Magistrate Judge Sheila K. Oberto on 05/03/2011. Referred to Judge Wanger; Objections to F&R due by 6/6/2011. (Flores, E)
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(HC) Candelario v. Hartley Doc. 12 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 FERNANDO CANDELARIO, 11 Petitioner, 12 v. 13 JAMES D. HARTLEY, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00252-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS 16 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. 20 Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 21 304. 22 on February 16, 2010. 23 on May 17, 2010, and Petitioner filed a traverse on June 9, 2010. The matter was referred to the Magistrate Pending before the Court is the petition, which was filed Respondent filed an answer to the petition 24 I. 25 Rule 4 of the Rules Governing § 2254 Cases in the United 26 States District Courts (Habeas Rules) requires that the Court 27 summarily dismiss a petition "[i]f it plainly appears from the 28 petition and any attached exhibits that the petitioner is not Consideration of Dismissal of the Petition 1 Dockets.Justia.com 1 entitled to relief in the district court....” 2 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 3 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). 4 2(c) requires that a petition 1) specify all grounds of relief 5 available to the Petitioner; 2) state the facts supporting each 6 ground; and 3) state the relief requested. 7 not sufficient; rather, the petition must state facts that point 8 to a real possibility of constitutional error. 9 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at Habeas Rule 4; Habeas Rule Notice pleading is Rule 4, Advisory 10 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). 11 Allegations in a petition that are vague, conclusory, or palpably 12 incredible are subject to summary dismissal. 13 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 14 Hendricks v. Further, the Court may dismiss a petition for writ of habeas 15 corpus either on its own motion under Habeas Rule 4, pursuant to 16 the respondent's motion to dismiss, or after an answer to the 17 petition has been filed. 18 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 19 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 20 II. 21 Here, Petitioner alleges that he is an inmate of Avenal Background 22 State Prison who is serving a sentence of fifteen years to life 23 with the possibility of parole imposed in 1992 upon Petitioner’s 24 conviction of second degree murder with a gun enhancement. 25 1.) 26 Parole Hearings (BPH) made after a hearing held on August 9, 27 2006, finding Petitioner unsuitable for parole. 28 (Pet. Petitioner challenges the decision of California’s Board of (Pet. 1, 5-6.) It appears from Petitioner’s allegations and the transcript 2 1 of the parole hearing submitted with the petition that Petitioner 2 attended the parole hearing before the board on August 9, 2006 3 (doc. 1, 52, 55); spoke to the board about various suitability 4 factors (doc. 1, 57-105); and made a statement to the BPH on his 5 own behalf concerning his suitability for parole (doc. 1, 113- 6 15). 7 made a closing statement on his behalf. 8 98, 108-12.) 9 Further, counsel assisted Petitioner at the hearing and (Doc. 1, 52, 54, 90, 93, The transcript of the hearing also reflects that Petitioner 10 was present at the conclusion of the hearing when the BPH 11 explained why it decided that Petitioner was not suitable for 12 parole. 13 and Petitioner’s criminal history. 14 The board relied on the nature of the commitment offense (Doc. 1, 116-18.) Petitioner asks this Court to review whether there was some 15 evidence to support the conclusion that Petitioner was unsuitable 16 for parole because he posed a current threat of danger to the 17 public if released. 18 an absence of some evidence to support the BPH’s decision, the 19 state courts’ decisions upholding the denial of parole were 20 unreasonable applications of clearly established federal law. 21 Petitioner also argues that the BPH failed to apply correctly 22 California law concerning factors of parole suitability. 23 5-6, 8-11, 15-48.) Petitioner contends that because there was (Pet. 24 III. 25 Because the petition was filed after April 24, 1996, the Failure to State a Cognizable Claim 26 effective date of the Antiterrorism and Effective Death Penalty 27 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 28 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 3 Lindh 1 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 2 A district court may entertain a petition for a writ of 3 habeas corpus by a person in custody pursuant to the judgment of 4 a state court only on the ground that the custody is in violation 5 of the Constitution, laws, or treaties of the United States. 28 6 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 7 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 8 16 (2010) (per curiam). 9 The Supreme Court has characterized as reasonable the 10 decision of the Court of Appeals for the Ninth Circuit that 11 California law creates a liberty interest in parole protected by 12 the Fourteenth Amendment Due Process Clause, which in turn 13 requires fair procedures with respect to the liberty interest. 14 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (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).1 18 Swarthout v. Cooke, 131 S.Ct. 859, 862. 19 rejected inmates’ claims that they were denied a liberty interest In Swarthout, the Court 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. 4 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, 131 S.Ct. 859, 862. 12 petitioners had received the process that was due as follows: 13 14 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.... 15 16 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 17 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 18 noted that California’s “some evidence” rule is not a substantive 19 federal requirement, and correct application of California’s 20 “some evidence” standard is not required by the federal Due 21 Process Clause. Id. at 862-63. 22 Here, Petitioner asks this Court to engage in the very type 23 of analysis foreclosed by Swarthout. Petitioner does not state 24 facts that point to a real possibility of constitutional error or 25 that otherwise would entitle Petitioner to habeas relief because 26 California’s “some evidence” requirement is not a substantive 27 federal requirement. Review of the record for “some evidence” to 28 5 1 support the denial of parole is not within the scope of this 2 Court’s habeas review under 28 U.S.C. § 2254. 3 Petitioner cites state law concerning the appropriate weight 4 to be given to evidence. 5 or claims rest on state law, they are not cognizable on federal 6 habeas corpus. 7 state issue that does not rise to the level of a federal 8 constitutional violation. 9 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 To the extent that Petitioner’s claim Federal habeas relief is not available to retry a Wilson v. Corcoran, 562 U.S. — , 131 10 (1991). 11 cognizable in federal habeas corpus. 12 616, 623 (9th Cir. 2002). Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d 13 A petition for habeas corpus should not be dismissed without 14 leave to amend unless it appears that no tenable claim for relief 15 can be pleaded were such leave granted. 16 F.2d 13, 14 (9th Cir. 1971). 17 Jarvis v. Nelson, 440 It is clear from the allegations in the petition and the 18 related documentation that Petitioner attended the parole 19 suitability hearing, made statements to the BPH, and received a 20 statement of reasons for the decision of the BPH. 21 appears from the face of the petition that Petitioner received 22 all process that was due, Petitioner cannot state a tenable due 23 process claim. 24 25 Because it Accordingly, it will be recommended that the petition be dismissed with leave to amend. 26 IV. 27 Unless a circuit justice or judge issues a certificate of 28 Certificate of Appealability appealability, an appeal may not be taken to the Court of Appeals 6 1 from the final order in a habeas proceeding in which the 2 detention complained of arises out of process issued by a state 3 court. 4 U.S. 322, 336 (2003). 5 only if the applicant makes a substantial showing of the denial 6 of a constitutional right. 7 petitioner must show that reasonable jurists could debate whether 8 the petition should have been resolved in a different manner or 9 that the issues presented were adequate to deserve encouragement 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a 10 to proceed further. 11 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 12 certificate should issue if the Petitioner shows that jurists of 13 reason would find it debatable whether the petition states a 14 valid claim of the denial of a constitutional right and that 15 jurists of reason would find it debatable whether the district 16 court was correct in any procedural ruling. 17 529 U.S. 473, 483-84 (2000). 18 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 19 the claims in the habeas petition, generally assesses their 20 merits, and determines whether the resolution was debatable among 21 jurists of reason or wrong. 22 applicant to show more than an absence of frivolity or the 23 existence of mere good faith; however, it is not necessary for an 24 applicant to show that the appeal will succeed. 25 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 26 A district court must issue or deny a certificate of 27 appealability when it enters a final order adverse to the 28 applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. 7 1 Here, it does not appear that reasonable jurists could 2 debate whether the petition should have been resolved in a 3 different manner. 4 of the denial of a constitutional right. 5 recommended that the Court decline to issue a certificate of 6 appealability. Petitioner has not made a substantial showing 7 V. 8 Accordingly, it is RECOMMENDED that: 9 1) Accordingly, it will be Recommendations The petition for writ of habeas corpus be DISMISSED 10 without leave to amend because Petitioner has failed to state a 11 claim that is cognizable in a proceeding pursuant to 28 U.S.C. 12 § 2254; and 13 14 15 16 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close the action because dismissal would terminate the proceeding in its entirety. 17 These findings and recommendations are submitted to the 18 United States District Court Judge assigned to the case, pursuant 19 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 20 the Local Rules of Practice for the United States District Court, 21 Eastern District of California. 22 being served with a copy, any party may file written objections 23 with the Court and serve a copy on all parties. 24 should be captioned “Objections to Magistrate Judge’s Findings 25 and Recommendations.” 26 and filed within fourteen (14) days (plus three (3) days if 27 served by mail) after service of the objections. 28 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. Within thirty (30) days after Such a document Replies to the objections shall be served 8 The Court will 1 § 636 (b)(1)(C). 2 objections within the specified time may waive the right to 3 appeal the District Court’s order. 4 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 5 6 IT IS SO ORDERED. 7 Dated: ie14hj May 3, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9