(HC) Ricchio v. Hornbeak et al, No. 1:2010cv00824 - Document 24 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Petitioner's Due Process Claim Concerning Evidence without Leave to Amend for Failure to State a Cognizable Claim; FINDINGS and RECOMMENDATIONS to Deny Petitioner's Remaining Claims and Petitioner 9;s Request for an Evidentiary Hearing; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Enter Judgment for Respondent; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 5/11/2011. Referred to Judge Oliver W. Wanger. Objections to F&R due by 6/14/2011. (Sant Agata, S)
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(HC) Ricchio v. Hornbeak et al Doc. 24 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LINDA ELIZABETH RICCHIO, 10 11 12 13 14 15 16 17 18 ) ) Petitioner, ) ) ) v. ) ) WARDEN TINA HORNBEAK, et al., ) ) Respondents. ) ) ) 1:10-cv—0824-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER’S DUE PROCESS CLAIM CONCERNING EVIDENCE WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOCS. 1, 5) FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S REMAINING CLAIMS AND PETITIONER’S REQUEST FOR AN EVIDENTIARY HEARING (DOCS. 1, 5) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO ENTER JUDGMENT FOR RESPONDENT 19 20 OBJECTIONS DEADLINE: THIRTY (30) DAYS 21 Petitioner is a state prisoner proceeding pro se with a 22 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 23 The matter has been referred to the Magistrate Judge pursuant to 24 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304. Pending before 25 the Court is the petition, which was filed on April 28, 2010, and 26 an addendum that was filed on May 19, 2010. (Docs. 1, 5.) 27 Respondent’s answer was filed on August 25, 2010, and 28 1 Dockets.Justia.com 1 Petitioner’s traverse was filed on September 13, 2010. 2 Petitioner filed a supplement to the traverse on September 24, 3 2010. 4 I. 5 Rule 4 of the Rules Governing § 2254 Cases in the United Consideration of Dismissal of the Petition 6 States District Courts (Habeas Rules) requires the Court to make 7 a preliminary review of each petition for writ of habeas corpus. 8 The Court must summarily dismiss a petition "[i]f it plainly 9 appears from the petition and any attached exhibits that the 10 petitioner is not entitled to relief in the district court....” 11 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 12 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 13 1990). 14 grounds of relief available to the Petitioner; 2) state the facts 15 supporting each ground; and 3) state the relief requested. 16 Notice pleading is not sufficient; rather, the petition must 17 state facts that point to a real possibility of constitutional 18 error. 19 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 20 Allison, 431 U.S. 63, 75 n.7 (1977)). 21 that are vague, conclusory, or palpably incredible are subject to 22 summary dismissal. 23 Cir. 1990). 24 Habeas Rule 2(c) requires that a petition 1) specify all 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 25 corpus either on its own motion under Habeas Rule 4, pursuant to 26 the respondent's motion to dismiss, or after an answer to the 27 petition has been filed. 28 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 Advisory Committee Notes to Habeas Rule 2 1 2 (9th Cir. 2001). Here, Respondent answered the petition on August 25, 2010, 3 and Petitioner filed a traverse in September 2011. 4 the United States Supreme Court decided Swarthout v. Cooke, 562 5 U.S. –, 131 S.Ct. 859, 861-62 (2011). 6 to apply in the instant case, and because no motion to dismiss 7 any claims in the petition has been filed, the Court proceeds to 8 consider whether the petition states a cognizable claim for 9 relief. Subsequently, Because Swarthout appears 10 II. 11 Petitioner alleges that she is an inmate of Valley State Background 12 Prison for Women in Chowchilla who is serving a sentence of 13 twenty-five (25) years to life imposed in the San Diego County 14 Superior Court upon Petitioner’s 1989 conviction of first degree 15 murder with personal use of a firearm. 16 challenges the decision of California’s Board of Parole Hearings 17 (BPH) made after a hearing held on April 10, 2007, to deny 18 Petitioner parole for five years. 19 argues that the state court decisions upholding the parole 20 determination were objectively unreasonable. (Pet. 1, 51.) (Pet. 16.) Petitioner Petitioner also (Pet. 14-18.) 21 It appears from Petitioner’s allegations and accompanying 22 documentation that she attended the parole hearing held before 23 the board on April 10, 2007. 24 Petitioner spoke to the Board about numerous parole suitability 25 factors. 26 Petitioner made a statement in favor of parole to the board on 27 her own behalf. 28 at the hearing by counsel, who appeared and advocated on her (Pet., doc. 1-2, 1, 13.) (Id. at 17-80; doc. 1-3, 1-79; doc. 1-4, 1-4.) (Doc. 1-4, 41-44.) 3 Petitioner was also assisted 1 behalf. 2 41.) 3 reasons for the denial of parole. 4 decision was based on the nature of the commitment offense, 5 Petitioner’s failure to take full responsibility for her offense, 6 Petitioner’s dysfunctional social history and insufficient 7 participation and progress in beneficial self-help programming, 8 problems with her parole plan, and Petitioner’s history of 9 substance abuse. 10 (Doc. 1-2, 1, 10, 13, 20, 24; doc. 1-3, 5; doc. 1-4, 37- Petitioner was present when the board gave a statement of (Doc. 1-4, 55-70.) The (Id.) Petitioner asks this Court to review whether there was some 11 evidence to support the conclusion that Petitioner was unsuitable 12 for parole because she posed a current threat of danger to the 13 public if released. 14 respects, the board and the state courts misinterpreted the facts 15 or made factual conclusions that are not supported by the 16 evidence. 17 all relevant information, and it denied her rights to review 18 relevant documents. 19 courts wrongfully denied an evidentiary hearing. 20 complains that the denial of parole was punishment for having 21 married an ex-correctional officer. 22 rights to due process and equal protection of the laws were 23 violated; further, her protection against cruel and unusual 24 punishment under the Eighth and Fourteenth Amendments was 25 infringed by the board’s reliance on the victim’s sister’s 26 version of the commitment offense and false allegations of 27 Correctional Officer Robinson. 28 /// Petitioner complains that in numerous Petitioner contends that the board did not consider Petitioner also complains that the state Petitioner Petitioner alleges that her (Pet. 8-12, 19-45.) 4 1 III. 2 Because the petition was filed after April 24, 1996, the Failure to Allege a Claim Cognizable on Habeas Corpus 3 effective date of the Antiterrorism and Effective Death Penalty 4 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 5 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 6 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 7 A district court may entertain a petition for a writ of 8 habeas corpus by a person in custody pursuant to the judgment of 9 a state court only on the ground that the custody is in violation Lindh 10 of the Constitution, laws, or treaties of the United States. 28 11 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 12 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 13 16 (2010) (per curiam). 14 The Supreme Court has characterized as reasonable the 15 decision of the Court of Appeals for the Ninth Circuit that 16 California law creates a liberty interest in parole protected by 17 the Fourteenth Amendment Due Process Clause, which in turn 18 requires fair procedures with respect to the liberty interest. 19 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 20 However, the procedures required for a parole determination 21 are the minimal requirements set forth in Greenholtz v. Inmates 22 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 23 1 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, 5 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 25 26 27 28 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. 6 1 Here, in her due process claim, Petitioner asks this Court 2 to engage in the very type of analysis foreclosed by Swarthout. 3 This Court will not re-weigh the evidence or otherwise review the 4 correctness of the board’s factual conclusions. 5 review of the transcript does not reveal the absence of any 6 necessary information or the denial of Petitioner’s access to 7 such information. 8 a real possibility of constitutional error or that otherwise 9 would entitle Petitioner to habeas relief because California’s Further, a Petitioner does not state facts that point to 10 “some evidence” requirement is not a substantive federal 11 requirement. 12 the denial of parole is not within the scope of this Court’s 13 habeas review under 28 U.S.C. § 2254. 14 Review of the record for “some evidence” to support Petitioner cites state law concerning the appropriate weight 15 to be given to evidence. 16 or claims rest on state law, they are not cognizable on federal 17 habeas corpus. 18 state issue that does not rise to the level of a federal 19 constitutional violation. 20 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 21 (1991). 22 cognizable in federal habeas corpus. 23 616, 623 (9th Cir. 2002). 24 To the extent that Petitioner’s claim 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 Further, to the extent that Petitioner complains of errors 25 in the state post-conviction process, Petitioner does not state a 26 claim that would entitle her to relief in this proceeding. 27 established that federal habeas relief is not available to 28 redress procedural errors in the state collateral review process. 7 It is 1 Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998); Carriger v. 2 Stewart, 95 F.3d 755, 763 (9th Cir. 1996), vacated on other 3 grounds, Carriger v. Stewart, 132 F.3d 463 (1997); Franzen v. 4 Brinkman, 877 F.2d 26, 26 (9th Cir. 1989). 5 A petition for habeas corpus should not be dismissed without 6 leave to amend unless it appears that no tenable claim for relief 7 can be pleaded were such leave granted. 8 F.2d 13, 14 (9th Cir. 1971). 9 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition that 10 Petitioner attended the parole suitability hearing, made 11 statements to the BPH, and received a statement of reasons for 12 its decision. 13 documentation establish that she had an opportunity to be heard 14 at the hearing and received a statement of reasons for the 15 decision in question. 16 Petitioner could state a tenable due process claim. Thus, Petitioner’s own allegations and It therefore does not appear that 17 Accordingly, it will be recommended that Petitioner’s due 18 process claim concerning the evidence supporting the denial of 19 parole be dismissed without leave to amend. 20 IV. 21 Petitioner refers to the reliance of the BPH and the Fair Tribunal 22 California courts upon the “version” of Petitioner’s commitment 23 offense given by Susan Fisher, the sister of the victim of 24 Petitioner’s commitment offense. 25 was an “ex-BPH chairperson” and a victim rights advocate for 26 Governor Schwarzenegger. 27 Fisher’s statement of the offense on a crime victim’s website was 28 inconsistent with her sworn testimony given at Petitioner’s Petitioner alleges that Fisher (Pet. 11, 29.) 8 Petitioner alleges that 1 trial. 2 an evidentiary hearing by state authorities so that she could 3 present evidence of her own version of the offense. (Pet. 29.) Petitioner complains that she was not given (Id.) 4 Title 28 U.S.C. § 2254 provides in pertinent part: 5 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 6 7 8 9 10 11 12 (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 (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. 13 14 15 16 (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence. 17 The petitioner bears the burden of establishing that the 18 decision of the state court was contrary to, or involved an 19 unreasonable application of, the precedents of the United States 20 Supreme Court. Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th 21 Cir. 2004); Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 22 1996). 23 A state court’s decision contravenes clearly established 24 Supreme Court precedent if it reaches a legal conclusion contrary 25 to that of the Supreme Court or concludes differently on an 26 indistinguishable set of facts. Williams v. Taylor, 529 U.S. 27 362, 405-06 (2000). The state court need not have cited Supreme 28 9 1 Court precedent or have been aware of it, "so long as neither the 2 reasoning nor the result of the state-court decision contradicts 3 [it]." 4 unreasonably applies clearly established federal law if it either 5 1) correctly identifies the governing rule but then applies it to 6 a new set of facts in a way that is objectively unreasonable, or 7 2) extends or fails to extend a clearly established legal 8 principle to a new context in a way that is objectively 9 unreasonable. Early v. Packer, 537 U.S. 3, 8 (2002). The state court Hernandez v. Small, 282 F.3d 1132, 1142 (9th 10 Cir.2002); see, Williams, 529 U.S. at 408-09. 11 law is unreasonable if it is objectively unreasonable; an 12 incorrect or inaccurate application of federal law is not 13 necessarily unreasonable. 14 An application of Williams, 529 U.S. at 410. A fair trial in a fair tribunal is a basic requirement of 15 due process. 16 California inmates have a due process right to parole 17 consideration by neutral, unbiased decision makers. 18 Maass, 915 F.2d 418, 422 (9th Cir. 1990).2 19 In re Murchison, 349 U.S. 133, 136 (1955). O’Bremski v. Here, the allegations of the petition and transcripts of the 20 hearing reflect that Fisher appeared at Petitioner’s parole 21 hearing as a family member of the victim; Fisher did not function 22 as a commissioner. 23 commissioners presiding at Petitioner’s hearing considered any 24 website or other extra-record source of information from Fisher. There is no basis for a conclusion that the 25 26 27 28 2 Although Petitioner mentions the Eighth and Fourteenth Amendments in connection with this claim (Pet. 11), it appears that Petitioner is alleging a claim concerning bias of the tribunal, which the Court understands to be a claim based on Petitioner’s right to due process of law guaranteed by the Fourteenth Amendment. 10 1 Further, there is no evidence presented that warrants an 2 inference that the commissioners who presided over Petitioner’s 3 parole hearing were influenced in any way by Fisher’s previous 4 status as a member of the BPH. 5 Petitioner also submitted materials concerning Presiding 6 Commissioner Ed Martinez, who was one of two commissioners who 7 presided over Petitioner’s parole hearing. 8 evidence that Commissioner Martinez exhibited any bias or 9 unfairness while he presided over Petitioner’s parole hearing. 10 The Court finds no Because Petitioner has not established any bias or other 11 basis for a violation of due process with respect to the board’s 12 impartiality, Petitioner has not shown that the state courts’ 13 decisions upholding the board’s denial of parole were contrary 14 to, or involved an unreasonable application of, the precedents of 15 the United States Supreme Court. 16 17 Accordingly, it will be recommended that Petitioner’s claim concerning the lack of an impartial tribunal be denied. 18 V. 19 Petitioner alleges that the BPH’s actions denied her the 20 21 Equal Protection equal protection of the laws. (Pet. 8, 9, 24, 32.) Prisoners are protected under the Equal Protection Clause of 22 the Fourteenth Amendment from invidious discrimination based on 23 race, religion, or membership in a protected class subject to 24 restrictions and limitations necessitated by legitimate 25 penological interests. 26 (1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). 27 Protection Clause essentially directs that all persons similarly 28 situated should be treated alike. Wolff v. McDonnell, 418 U.S. 539, 556 11 The Equal City of Cleburne, Texas v. 1 Cleburne Living Center, 473 U.S. 432, 439 (1985). 2 equal protection are shown when a respondent intentionally 3 discriminated against a petitioner based on membership in a 4 protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686 5 (9th Cir. 2001), or when a respondent intentionally treated a 6 member of an identifiable class differently from other similarly 7 situated individuals without a rational basis, or a rational 8 relationship to a legitimate state purpose, for the difference in 9 treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 10 11 Violations of (2000). Here, Petitioner has not alleged any facts to demonstrate a 12 violation of equal protection. 13 member of a protected class or that membership in a protected 14 class was the basis of any alleged discrimination. 15 16 She has not alleged that she is a Accordingly, it will be recommended that Petitioner’s equal protection claim be denied. 17 VI. 18 Petitioner appears to argue that she was punished, in Punishment 19 effect, for having married an ex-correctional officer while in 20 custody and having sued Correctional Officer Robinson for his 21 allegedly having sexually victimized her in prison. 22 Petitioner argues that denial of parole for five years for these 23 reasons was cruel and unusual punishment and a denial of due 24 process and equal protection. 25 (Pet. 24.) (Pet. 32.) The transcript of the hearing reflects that Petitioner 26 responded to questions of Presiding Commissioner Martinez 27 regarding her marriage to Adolpho Navarro, whom Petitioner met 28 while he was a correctional officer at the prison where she was 12 1 incarcerated. 2 relationship only after Navarro had stopped working at the 3 prison, and they were married from March 1991 through May 2004, 4 when they were divorced due to Navarro’s adultery. 5 74-75.) 6 her father’s abuse of her mother that one could stay in a 7 marriage with poor communication skills and little understanding 8 of a spouse’s needs. 9 found another partner, Petitioner appropriately filed for divorce Petitioner testified that they began a romantic (Doc. 2-1, Petitioner testified that she had learned from observing (Doc. 1-2, 77-78.) However, when Navarro 10 because her husband’s behavior was inappropriate. 11 When Commissioner Martinez asked Petitioner if during her 12 relationship with Navarro, she had displayed some behavior 13 similar to her behavior prior to the homicide, Petitioner denied 14 it. (Id. at 78.) (Id. at 79-80.) 15 The evidence at the hearing included documentation of a 16 prison disciplinary investigation in 1990 concerning whether 17 Petitioner had a personal relationship with Navarro. 18 reported that Petitioner had refused to cooperate. 19 80.) 20 letters and photographs reflecting a romantic relationship with 21 Navarro since late 1989. 22 It was (Doc. 1-2, Additional investigation revealed that Petitioner had (Doc. 1-3, 2-5.) Commissioner Martinez explained to Petitioner that the issue 23 concerning this conduct of Petitioner was that Petitioner had a 24 relationship, which she denied during an investigation, and the 25 relationship itself was against the correctional department’s 26 policy. 27 marriage was helpful to her progress, Commissioner Martinez 28 characterized the decision to become involved with a correctional (Doc. 1-3, 5-9.) Although Petitioner believed that her 13 1 officer as a poor decision. 2 she fully understood, and she agreed with the Commissioner. 3 (Id.) 4 the focus of the discussion was Petitioner’s judgment and 5 decision-making, and that there had been a pattern of behavior 6 carrying over from before the commitment offense to after it. 7 (Id. at 10-11.) 8 9 (Id. at 9.) Petitioner said that Commissioner Martinez summarized the matter by saying that The board then brought up an internal affairs investigation conducted in 2007 concerning Petitioner’s allegations that a male 10 correctional officer named Sean Robinson had a sexual 11 relationship with Petitioner for several years. 12 had surfaced only after Petitioner had obtained confidential 13 information concerning the officer from a family member. 14 Petitioner filed a lawsuit concerning the alleged sexual 15 misconduct. 16 although Petitioner alleged that the relationship had existed, it 17 could not be substantiated. 18 related that Petitioner was infatuated with Robinson and 19 endeavored to be located wherever the officer was in the prison, 20 as well as a photograph of the officer which Petitioner had 21 claimed he had given her but which was actually printed on a 22 vocational graphic arts in-service training book. 23 sexual misconduct alleged by Petitioner had not surfaced in the 24 investigation. 25 Petitioner had moved forward in her rehabilitation during her 26 incarceration because her conduct was similar to the crime for 27 which she was incarcerated. 28 (Id. at 15.) The allegation The investigators concluded that Evidence included witnesses who Evidence of The conclusion was that it was questionable if (Doc. 1-3, 12-15.) The conclusion concerning the similarity of Petitioner’s 14 1 post-offense behavior with pre-offense conduct was based on 2 Petitioner’s commitment offense, namely, the murder of a former, 3 long-term boyfriend, whom Petitioner had stalked obsessively. 4 Petitioner had secretly acquired information concerning her 5 victim and his whereabouts. 6 and moved to a new place to reside with her, Petitioner continued 7 to contact the victim and his partner, harassed the victim’s 8 family, and threatened and confronted the victim repeatedly. 9 (Doc. 1-2, 27-37.) After the victim found a new partner 10 Petitioner denied Robinson's allegations that she had 11 stalked him, and she contended that she had been set up by 12 Robinson, who had read her file concerning the commitment 13 offense. 14 (Doc. 1-3, 15-19.) In explaining their decision to deny parole, the 15 commissioners relied on the nature of the commitment offense, 16 noting that after Petitioner’s lengthy relationship with the 17 victim disintegrated due to his having another partner, 18 Petitioner stalked the victim in a calculated manner and shot him 19 repeatedly after renting an apartment next to his. 20 55-57.) 21 except for the 1990 disciplinary report concerning conspiring 22 with a staff member, which was considered to show a continuing 23 pattern of behavior. 24 appeared to be that Petitioner failed to take responsibility for 25 her offense because she asserted that she killed the victim 26 reactively at a time when she intended to kill herself. 27 63, 66.) Petitioner also needed to address her substance abuse 28 problem. (Id. at 61.) (Doc. 1-4, Petitioner’s programming was found to have been good (Id. at 58, 68-70.) 15 The primary concern (Id. at 1 The record thus shows that Petitioner’s relationship with 2 Navarro was considered significant because Petitioner engaged in 3 secretive behavior, and the relationship was contrary to the 4 rules and policies of the correctional institution; it was 5 important because Petitioner acted covertly in violation of 6 policies regarding relationships, and not because Petitioner 7 exercised any right to a relationship or to a marital status. 8 9 Likewise, the situation involving Robinson reflected continued pursuit or stalking behavior with a correctional 10 officer. 11 context of Petitioner’s programming and progress while in the 12 institution. 13 Petitioner was punished. Both instances were considered and evaluated in the The record does not support the allegations that 14 Petitioner adamantly denies that her relationship with 15 Navarro predated his separation from employment with the prison, 16 and just as emphatically alleges that she was pursued by Robinson 17 instead of pursuing him. 18 within the scope of this Court’s review of the board’s and the 19 state courts’ proceedings to re-weigh the evidence or to evaluate 20 the application of the “some evidence” rule. The Court reiterates that it is not 21 Petitioner has not demonstrated that she was punished for 22 exercise of her right to marry or involvement in relationships 23 with correctional officers. 24 demonstrated that she was “punished” for having filed a lawsuit 25 against, or because of, Correctional Officer Robinson. 26 the record reflects that the board appropriately considered the 27 extent to which Petitioner had progressed with respect to her 28 participation in, and judgment concerning, interpersonal Likewise, Petitioner has not 16 Instead, 1 relationships. 2 Petitioner’s conduct with correctional officers was considered to 3 reflect a lack of progress in rehabilitation and programming in 4 connection with Petitioner’s tendency to develop obsessive 5 attachments with inappropriate partners – matters central to the 6 commission of Petitioner’s commitment offense. 7 The record supports the conclusion that Accordingly, it will be recommended that Petitioner’s claim 8 of unfairness or inappropriate punishment in violation of the 9 Eighth and Fourteenth Amendments be denied. 10 In summary, the Court concludes that Petitioner’s due 11 process claim concerning the absence of some evidence to support 12 the denial of parole is not cognizable in a proceeding pursuant 13 to 28 U.S.C. § 2254. 14 because Petitioner has not shown that she is entitled to relief 15 on her Fourteenth Amendment claims concerning the lack of an 16 impartial tribunal and denial of equal protection, or on her 17 claim under the Eighth and Fourteenth Amendments. The remaining claims should be denied 18 VII. 19 Petitioner requests that she be given an evidentiary 20 21 Request for an Evidentiary Hearing hearing. If a petition is not dismissed, the Court must review the 22 answer, any transcripts and records of state-court proceedings, 23 and any materials submitted under Rule 7 to determine whether an 24 evidentiary hearing is warranted. 25 considering a request for an evidentiary hearing, a court must 26 first determine whether a factual basis exists in the record to 27 support the petitioner’s claim. 28 1078 (9th Cir. 1999). Habeas Rule Rule 8(a). In Baja v. Ducharme, 187 F.3d 1075, A court will determine whether the 17 1 Petitioner has alleged facts that, if proven, would entitle him 2 or her to habeas relief. 3 (9th Cir. 2005). 4 Earp v. Ornoski, 431 F.3d 1158, 1167 As demonstrated by the foregoing analysis of the pleadings 5 and exhibits, Petitioner did not allege or document specific 6 facts that, if proven, would entitle her to relief. 7 complaints with the inferences and conclusions drawn by the board 8 concern factual inconsistencies or controversies that were 9 considered by the board and were resolved against Petitioner by Petitioner’s 10 the board in an appropriate exercise of its adjudicatory powers. 11 The record before the Court is adequate for a decision on the 12 merits. 13 14 It will be recommended that Petitioner’s request for an evidentiary hearing be denied. 15 VIII. 16 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 17 appealability, an appeal may not be taken to the Court of Appeals 18 from the final order in a habeas proceeding in which the 19 detention complained of arises out of process issued by a state 20 court. 21 U.S. 322, 336 (2003). 22 only if the applicant makes a substantial showing of the denial 23 of a constitutional right. 24 petitioner must show that reasonable jurists could debate whether 25 the petition should have been resolved in a different manner or 26 that the issues presented were adequate to deserve encouragement 27 to proceed further. 28 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 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 Miller-El v. Cockrell, 537 U.S. at 336 18 A 1 certificate should issue if the Petitioner shows that jurists of 2 reason would find it debatable whether the petition states a 3 valid claim of the denial of a constitutional right and that 4 jurists of reason would find it debatable whether the district 5 court was correct in any procedural ruling. 6 529 U.S. 473, 483-84 (2000). 7 Slack v. McDaniel, In determining this issue, a court conducts an overview of 8 the claims in the habeas petition, generally assesses their 9 merits, and determines whether the resolution was debatable among 10 jurists of reason or wrong. 11 applicant to show more than an absence of frivolity or the 12 existence of mere good faith; however, it is not necessary for an 13 applicant to show that the appeal will succeed. 14 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 15 A district court must issue or deny a certificate of 16 appealability when it enters a final order adverse to the 17 applicant. 18 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 19 debate whether the petition should have been resolved in a 20 different manner. 21 of the denial of a constitutional right. 22 recommended that the Court decline to issue a certificate of 23 appealability. 24 IX. 25 Accordingly, it is RECOMMENDED that: 26 1) Petitioner has not made a substantial showing Accordingly, it will be Recommendation Petitioner’s due process claim concerning the evidence 27 supporting the denial of parole be DISMISSED without leave to 28 amend for failure to state a claim cognizable in a proceeding 19 1 2 pursuant to 28 U.S.C. § 2254; and 2) The petition be DENIED insofar as Petitioner claims that 3 her Fourteenth Amendment right to due process of law was violated 4 by the absence of an impartial tribunal, her Fourteenth Amendment 5 right to the equal protection of the laws was denied by the 6 actions of the Board of Parole Hearings, and her Eighth and 7 Fourteenth Amendment rights were violated by the reliance of the 8 Board of Parole Hearings on reports concerning Petitioner’s 9 conduct relating to her romantic involvement with correctional 10 officers; and 11 3) 12 hearing; and 13 4) 14 The Court DENY Petitioner’s request for an evidentiary The Court DECLINE to issue a certificate of appealability; and 15 4) 16 These findings and recommendations are submitted to the 17 United States District Court Judge assigned to the case, pursuant 18 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 19 the Local Rules of Practice for the United States District Court, 20 Eastern District of California. 21 being served with a copy, any party may file written objections 22 with the Court and serve a copy on all parties. 23 should be captioned “Objections to Magistrate Judge’s Findings 24 and Recommendations.” 25 and filed within fourteen (14) days (plus three (3) days if 26 served by mail) after service of the objections. 27 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 28 636 (b)(1)(C). The Clerk be DIRECTED to enter judgment for Respondent. 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 20 1 objections within the specified time may waive the right to 2 appeal the District Court’s order. 3 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 4 5 IT IS SO ORDERED. 6 Dated: ie14hj May 11, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21