-SKO (HC) Heller v. Hartley, No. 1:2010cv01227 - Document 11 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 9 Respondent's Motion to Dismiss the Petition be GRANTED, the Petition be DISMISSED Without Leave to Amend, the Court DECLINE to Issue a Certificate of Appealability, and the Clerk be DIRECTED to Close the Case re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Sheila K. Oberto on 6/22/2011. Referred to Judge Wanger. Objections to F&R due within thirty (30) days. (Jessen, A)
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-SKO (HC) Heller v. Hartley Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. HELLER, 12 Petitioner, 13 14 15 v. J. HARTLEY, Warden, 16 Respondent. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01227-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 9, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS 19 20 Petitioner is a state prisoner proceeding pro se with a 21 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 22 The matter has been referred to the Magistrate Judge pursuant to 23 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 24 before the Court is Respondent’s motion to dismiss the petition, 25 which was filed on February 7, 2011. 26 to the motion on February 22, 2011. Pending Petitioner filed opposition No reply was filed. 27 I. 28 Petitioner alleged in the petition that he was an inmate of Background 1 Dockets.Justia.com 1 the Avenal State Prison at Avenal, California, serving a sentence 2 of nineteen (19) years to life imposed by the San Bernardino 3 County Superior Court upon Petitioner’s conviction in 1983 of 4 second degree murder with use of a gun and possession of 5 marijuana and cocaine. 6 constitutionality of the governor’s rescission on October 5, 7 2009, of the previous decision of the California Board of Parole 8 Hearings (BPH) granting parole to Petitioner on May 14, 2009. 9 Petitioner argues that because there was no evidence in the (Pet. 1.) Petitioner challenges the 10 record to support the governor’s conclusion that Petitioner was a 11 current danger if released, Petitioner suffered a violation of 12 his rights to due process of law pursuant to the Fourteenth 13 Amendment as well as the California Constitution. 14 also relies on California statutes, regulations, and case law 15 concerning the determination of suitability for parole and 16 application of the “some evidence” rule at parole hearings. 17 at 10-13.) 18 rehabilitation and other suitability factors supported a grant of 19 parole, and that continued reliance on unchanging factors to deny 20 parole deprived him of due process of law. 21 challenges the decision of the San Bernardino Superior Court 22 denying Petitioner habeas relief. 23 Petitioner (Id. Petitioner argues that the evidence of his Petitioner also (Id. at 19.) Neither Petitioner nor Respondent provided the Court with a 24 transcript of the proceedings before the BPH or official 25 documentation of the governor’s decision. 26 inferred from Petitioner’s factual allegations in the petition 27 that Petitioner was present at the hearing before the BPH. 28 e.g., pet. 8:17-22; 9:1-5; 13:6-13.) 2 However, it may be (See, It may likewise be inferred 1 from Petitioner’s recitation of his own statements to the BPH at 2 the 2009 hearing that Petitioner had an opportunity to be heard 3 at the hearing before the BPH. 4 record also supports a clear inference that Petitioner received a 5 statement of the BPH’s reasons for granting parole (id. at 10:1- 6 12) as well as the governor’s reasons for his ultimate denial of 7 parole (id. at 10:13-26; 11:11-21; 12:22-24; 13:3-4; 14:18-19). (Pet. 13:5-11; 14:14-16.) The 8 II. 9 Because the petition was filed after April 24, 1996, the Failure to State a Cognizable Due Process Claim 10 effective date of the Antiterrorism and Effective Death Penalty 11 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 12 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 13 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 14 A district court may entertain a petition for a writ of 15 habeas corpus by a person in custody pursuant to the judgment of 16 a state court only on the ground that the custody is in violation 17 of the Constitution, laws, or treaties of the United States. 28 18 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 19 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 20 16 (2010) (per curiam). 21 Lindh The Supreme Court has characterized as reasonable the 22 decision of the Court of Appeals for the Ninth Circuit that 23 California law creates a liberty interest in parole protected by 24 the Fourteenth Amendment Due Process Clause, which in turn 25 requires fair procedures with respect to the liberty interest. 26 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 27 28 However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates 3 1 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 2 Swarthout v. Cooke, 131 S.Ct. 859, 862. 3 rejected inmates’ claims that they were denied a liberty interest 4 because there was an absence of “some evidence” to support the 5 decision to deny parole. 6 7 8 9 10 11 12 13 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.) 14 Swarthout, 131 S.Ct. 859, 862. 15 petitioners had received the process that was due as follows: 16 17 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.... 18 19 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether 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 [the petitioners] received due process. 2 Swarthout, 131 S.Ct. at 862. 3 noted that California’s “some evidence” rule is not a substantive 4 federal requirement, and correct application of California’s 5 “some evidence” standard is not required by the federal Due 6 Process Clause. 7 The Court in Swarthout expressly Id. at 862-63. Here, Petitioner asks this Court to engage in the very type 8 of analysis foreclosed by Swarthout. 9 facts that point to a real possibility of constitutional error or Petitioner does not state 10 that otherwise would entitle Petitioner to habeas relief because 11 California’s “some evidence” requirement is not a substantive 12 federal requirement. 13 support the parole authorities’ denial of parole is not within 14 the scope of this Court’s habeas review under 28 U.S.C. § 2254. 15 Petitioner cites state law concerning the appropriate Review of the record for “some evidence” to 16 application of the “some evidence” requirement. 17 that Petitioner’s claim or claims rest on state law, they are not 18 cognizable on federal habeas corpus. 19 not available to retry a state issue that does not rise to the 20 level of a federal constitutional violation. 21 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 22 U.S. 62, 67-68 (1991). 23 state law are not cognizable in federal habeas corpus. 24 Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 25 To the extent Federal habeas relief is Wilson v. Corcoran, Alleged errors in the application of Souch v. Because Petitioner has not established a violation by the 26 parole authorities of his rights under the Fourteenth Amendment, 27 the decisions of the state courts upholding the governor’s 28 decision could not have resulted in either 1) a decision that was 5 1 contrary to, or involved an unreasonable application of, clearly 2 established federal law, as determined by the Supreme Court of 3 the United States; or 2) a decision that was based on an 4 unreasonable determination of the facts in light of the evidence 5 presented in the state court proceedings. 6 failed to state facts concerning the state court decisions that 7 would entitle him to relief. See, 28 U.S.C. § 2254(d). 8 Therefore, Petitioner’s due process claim with respect to the 9 state court decisions should likewise be dismissed. 10 Thus, Petitioner has In summary, the Court concludes that Petitioner has failed 11 to state a due process claim cognizable in a proceeding pursuant 12 to 28 U.S.C. § 2254. 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 Here, it is clear from the allegations in the petition that 18 Petitioner attended the parole suitability hearing, made 19 statements to the BPH, and received a statement of reasons for 20 the decisions of the BPH and the governor. 21 own allegations establish that he had an opportunity to be heard 22 and a statement of reasons for the decisions in question. 23 therefore does not appear that Petitioner could state a tenable 24 due process claim. 25 Thus, Petitioner’s It Accordingly, it will be recommended that the motion to 26 dismiss the petition be granted, and the petition be dismissed 27 without leave to amend. 28 /// 6 1 III. 2 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 3 appealability, an appeal may not be taken to the Court of Appeals 4 from the final order in a habeas proceeding in which the 5 detention complained of arises out of process issued by a state 6 court. 7 U.S. 322, 336 (2003). 8 only if the applicant makes a substantial showing of the denial 9 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). Under this standard, a 10 petitioner must show that reasonable jurists could debate whether 11 the petition should have been resolved in a different manner or 12 that the issues presented were adequate to deserve encouragement 13 to proceed further. 14 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 15 certificate should issue if the Petitioner shows that jurists of 16 reason would find it debatable whether the petition states a 17 valid claim of the denial of a constitutional right and that 18 jurists of reason would find it debatable whether the district 19 court was correct in any procedural ruling. 20 529 U.S. 473, 483-84 (2000). 21 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 22 the claims in the habeas petition, generally assesses their 23 merits, and determines whether the resolution was debatable among 24 jurists of reason or wrong. 25 applicant to show more than an absence of frivolity or the 26 existence of mere good faith; however, it is not necessary for an 27 applicant to show that the appeal will succeed. 28 Cockrell, 537 U.S. at 338. Id. It is necessary for an 7 Miller-El v. 1 A district court must issue or deny a certificate of 2 appealability when it enters a final order adverse to the 3 applicant. 4 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 5 debate whether the petition should have been resolved in a 6 different manner. 7 of the denial of a constitutional right. 8 9 Petitioner has not made a substantial showing Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 10 IV. 11 Accordingly, it is RECOMMENDED that: 12 1) Respondent’s motion to dismiss the petition be GRANTED; 14 2) The petition be DISMISSED without leave to amend; and 15 3) The Court DECLINE to issue a certificate of appeal; and 16 4) The Clerk be DIRECTED to close the case because an order 13 17 Recommendations and of dismissal would terminate the case in its entirety. 18 These findings and recommendations are submitted to the 19 United States District Court Judge assigned to the case, pursuant 20 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 21 the Local Rules of Practice for the United States District Court, 22 Eastern District of California. 23 being served with a copy, any party may file written objections 24 with the Court and serve a copy on all parties. 25 should be captioned “Objections to Magistrate Judge’s Findings 26 and Recommendations.” 27 and filed within fourteen (14) days (plus three (3) days if 28 served by mail) after service of the objections. Within thirty (30) days after Such a document Replies to the objections shall be served 8 The Court will 1 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 2 636 (b)(1)(C). 3 objections within the specified time may waive the right to 4 appeal the District Court’s order. 5 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 6 7 IT IS SO ORDERED. 8 Dated: ie14hj June 22, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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