(HC) Long Diep v. J D Hartley, No. 1:2010cv00431 - Document 20 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 5/9/2011 recommending that 1 Petition for Writ of Habeas Corpus be DISMISSED. Referred to Judge Anthony W. Ishii; Objections to F&R due by 6/13/2011. (Lundstrom, T)
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(HC) Long Diep v. J D Hartley Doc. 20 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LONG DIEP, 10 Petitioner, 11 v. 12 J. D. HARTLEY, Warden, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00431-AWI-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 15 16 Petitioner is a state prisoner proceeding pro se and in 17 forma pauperis with a petition for writ of habeas corpus pursuant 18 to 28 U.S.C. § 2254. 19 Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 20 304. 21 on March 5, 2010. 22 June 22, 2010, and Petitioner filed a traverse on July 8, 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 on 23 I. 24 Rule 4 of the Rules Governing § 2254 Cases in the United 25 States District Courts (Habeas Rules) requires that the Court 26 summarily dismiss a petition "[i]f it plainly appears from the 27 petition and any attached exhibits that the petitioner is not 28 entitled to relief in the district court....” Consideration of Dismissal of the Petition Habeas Rule 4; 1 Dockets.Justia.com 1 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 2 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). 3 2(c) requires that a petition 1) specify all grounds of relief 4 available to the Petitioner; 2) state the facts supporting each 5 ground; and 3) state the relief requested. 6 not sufficient; rather, the petition must state facts that point 7 to a real possibility of constitutional error. 8 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 9 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Habeas Rule Notice pleading is Rule 4, Advisory 10 Allegations in a petition that are vague, conclusory, or palpably 11 incredible are subject to summary dismissal. 12 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 13 Hendricks v. Further, the Court may dismiss a petition for writ of habeas 14 corpus either on its own motion under Habeas Rule 4, pursuant to 15 the respondent's motion to dismiss, or after an answer to the 16 petition has been filed. 17 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 18 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 19 II. 20 Petitioner alleges that he is an inmate of Avenal State 21 Prison who is serving a sentence of seven (7) years to life plus 22 an enhancement of four (4) years imposed by the Orange County 23 Superior Court in 1994 for attempted murder with use of a firearm 24 in violation of Cal. Pen. Code §§ 664, 187, and 12022.5. 25 2.) 26 Parole Hearings (BPH) made after a hearing held on October 10, 27 2008, finding Petitioner unsuitable for parole. 28 Background (Pet. Petitioner challenges the decision of California’s Board of (Pet. 5-6, 10.) Petitioner’s allegations and the transcript of the parole 2 1 hearing submitted with the petition reveal that Petitioner 2 attended the parole hearing before the board on October 10, 2008 3 (doc. 1, 10, 12-13); spoke to the board about various suitability 4 factors (doc. 1, 20-48); and made a statement to the board on his 5 own behalf concerning his suitability for parole (doc. 1, 113- 6 15). 7 made a closing statement on his behalf. 8 64.) 9 Further, counsel assisted Petitioner at the hearing and (Doc. 1, 10, 13, 19, 58- 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 offense, Petitioner’s history of criminality and substance abuse, 14 Petitioner’s problematic social history, and his failure on 15 previous grants of probation. 16 The board relied on the nature of the commitment (Doc. 1, 67-73.) Petitioner asks this Court to review whether there was some 17 evidence to support the conclusion that Petitioner was unsuitable 18 for parole because he posed a current threat of danger to the 19 public if released. 20 an absence of some evidence to support the BPH’s decision, the 21 state courts’ decisions upholding the denial of parole were 22 unreasonable applications of clearly established federal law and 23 were based on an unreasonable determination of the facts in light 24 of the evidence presented at the state hearing. 25 argues that the BPH failed to apply correctly California law 26 concerning factors of parole suitability. Petitioner contends that because there was Petitioner also (Pet. 5-6.) 27 III. 28 Because the petition was filed after April 24, 1996, the Failure to State a Cognizable Claim 3 1 effective date of the Antiterrorism and Effective Death Penalty 2 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 3 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 4 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 5 A district court may entertain a petition for a writ of 6 habeas corpus by a person in custody pursuant to the judgment of 7 a state court only on the ground that the custody is in violation 8 of the Constitution, laws, or treaties of the United States. 9 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 10 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 11 16 (2010) (per curiam). 12 Lindh 28 The Supreme Court has characterized as reasonable the 13 decision of the Court of Appeals for the Ninth Circuit that 14 California law creates a liberty interest in parole protected by 15 the Fourteenth Amendment Due Process Clause, which in turn 16 requires fair procedures with respect to the liberty interest. 17 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 18 However, the procedures required for a parole determination 19 are the minimal requirements set forth in Greenholtz v. Inmates 20 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 21 22 23 24 25 26 27 28 1 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 4 1 Swarthout v. Cooke, 131 S.Ct. 859, 862. 2 rejected inmates’ claims that they were denied a liberty interest 3 because there was an absence of “some evidence” to support the 4 decision to deny parole. 5 6 7 8 9 10 11 12 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.) 13 Swarthout, 131 S.Ct. 859, 862. 14 petitioners had received the process that was due as follows: 15 16 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.... 17 18 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 19 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 20 noted that California’s “some evidence” rule is not a substantive 21 federal requirement, and correct application of California’s 22 “some evidence” standard is not required by the federal Due 23 Process Clause. Id. at 862-63. 24 Here, Petitioner asks this Court to engage in the very type 25 of analysis foreclosed by Swarthout. Petitioner does not state 26 27 28 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 facts that point to a real possibility of constitutional error or 2 that otherwise would entitle Petitioner to habeas relief because 3 California’s “some evidence” requirement is not a substantive 4 federal requirement. 5 support the denial of parole is not within the scope of this 6 Court’s habeas review under 28 U.S.C. § 2254. 7 Review of the record for “some evidence” to Petitioner cites state law concerning the appropriate weight 8 to be given to evidence. 9 or claims rest on state law, they are not cognizable on federal To the extent that Petitioner’s claim 10 habeas corpus. 11 state issue that does not rise to the level of a federal 12 constitutional violation. 13 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 14 (1991). 15 cognizable in federal habeas corpus. 16 616, 623 (9th Cir. 2002). Federal habeas relief is not available to retry a Wilson v. Corcoran, 562 U.S. — , 131 Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d 17 A petition for habeas corpus should not be dismissed without 18 leave to amend unless it appears that no tenable claim for relief 19 can be pleaded were such leave granted. 20 F.2d 13, 14 (9th Cir. 1971). 21 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition and 22 the related documentation that Petitioner attended the parole 23 suitability hearing, made statements to the BPH, and received a 24 statement of reasons for the decision of the BPH. 25 appears from the face of the petition that Petitioner received 26 all process that was due, Petitioner cannot state a tenable due 27 process claim. 28 Because it Accordingly, it will be recommended that the petition be 6 1 dismissed without leave to amend. 2 IV. 3 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 4 appealability, an appeal may not be taken to the Court of Appeals 5 from the final order in a habeas proceeding in which the 6 detention complained of arises out of process issued by a state 7 court. 8 U.S. 322, 336 (2003). 9 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 10 of a constitutional right. 11 petitioner must show that reasonable jurists could debate whether 12 the petition should have been resolved in a different manner or 13 that the issues presented were adequate to deserve encouragement 14 to proceed further. 15 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 16 certificate should issue if the Petitioner shows that jurists of 17 reason would find it debatable whether the petition states a 18 valid claim of the denial of a constitutional right and that 19 jurists of reason would find it debatable whether the district 20 court was correct in any procedural ruling. 21 529 U.S. 473, 483-84 (2000). 22 § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 23 the claims in the habeas petition, generally assesses their 24 merits, and determines whether the resolution was debatable among 25 jurists of reason or wrong. 26 applicant to show more than an absence of frivolity or the 27 existence of mere good faith; however, it is not necessary for an 28 applicant to show that the appeal will succeed. Id. It is necessary for an 7 Miller-El v. 1 Cockrell, 537 U.S. at 338. 2 A district court must issue or deny a certificate of 3 appealability when it enters a final order adverse to the 4 applicant. 5 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 6 debate whether the petition should have been resolved in a 7 different manner. 8 of the denial of a constitutional right. 9 recommended that the Court decline to issue a certificate of 10 Petitioner has not made a substantial showing Accordingly, it will be appealability. 11 V. 12 Accordingly, it is RECOMMENDED that: 13 1) Recommendations The petition for writ of habeas corpus be DISMISSED 14 without leave to amend because Petitioner has failed to state a 15 claim that is cognizable in a proceeding pursuant to 28 U.S.C. 16 § 2254; and 17 18 19 20 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. 21 These findings and recommendations are submitted to the 22 United States District Court Judge assigned to the case, pursuant 23 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 24 the Local Rules of Practice for the United States District Court, 25 Eastern District of California. 26 being served with a copy, any party may file written objections 27 with the Court and serve a copy on all parties. 28 should be captioned “Objections to Magistrate Judge’s Findings Within thirty (30) days after 8 Such a document 1 and Recommendations.” 2 and filed within fourteen (14) days (plus three (3) days if 3 served by mail) after service of the objections. 4 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 5 § 636 (b)(1)(C). 6 objections within the specified time may waive the right to 7 appeal the District Court’s order. 8 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 9 10 IT IS SO ORDERED. 11 Dated: ie14hj May 9, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9