(HC) Turner v. Hartley, No. 1:2010cv01539 - Document 13 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the 1 Petition for Writ of Habeas Corpus be Denied and the Pending 12 Motion to Dismiss be Denied as Moot signed by Magistrate Judge Dennis L. Beck on 2/22/2011. Referred to Judge Oliver W. Wanger. Objections to F&R due by 3/28/2011. (Sant Agata, S)

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(HC) Turner v. Hartley Doc. 13 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CURTIS TURNER, 10 11 1:10-cv-01539-OWW-DLB (HC) Petitioner, FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS v. 12 [Doc. 1] JAMES D. HARTLEY 13 Respondent. 14 / 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 Petitioner filed the instant petition for writ of habeas corpus on August 26, 2010. 18 Petitioner challenges the California court decisions upholding of the April 30, 2008, decision of 19 the California Board of Parole Hearings. 20 On January 6, 2011, Respondent filed a motion to dismiss the petition as untimely. 21 Petitioner did not file an opposition. 22 Because California’s statutory parole scheme guarantees that prisoners will not be denied 23 parole absent some evidence of present dangerousness, the Ninth Circuit Court of Appeals held 24 that California law creates a liberty interest in parole that may be enforced under the Due Process 25 Clause. Hayward v. Marshall, 602 F.3d 546, 561-563 (9th Cir. 2010); Pearson v. Muntz, 606 26 F.3d 606, 608-609 (9th Cir. 2010); Cooke v. Solis, 606 F.3d 1206, 1213 (2010), rev’d, Swarthout 27 v. Cooke, ___ U.S.___, 131 S.Ct. 859 (2011). The Ninth Circuit instructed reviewing federal 28 1 Dockets.Justia.com 1 district courts to determine whether California’s application of California’s “some evidence” rule 2 was unreasonable or was based on an unreasonable determination of the facts in light of the 3 evidence. Hayward v. Marshall. 603 F.3d at 563; Pearson v. Muntz, 606 F.3d at 608. 4 On January 24, 2011, the Supreme Court issued a per curiam opinion in Swarthout v. 5 Cooke, ___ U.S.___, 131 S.Ct. 859 (2011). In Swarthout, the Supreme Court held that “the 6 responsibility for assuring that the constitutionally adequate procedures governing California’s 7 parole system are properly applied rests with California courts, and is no part of the Ninth 8 Circuit’s business.” Id. at 863. The federal habeas court’s inquiry into whether a prisoner denied 9 parole received due process is limited to determining whether the prisoner “was allowed an 10 opportunity to be heard and was provided a statement of the reasons why parole was denied.” Id. 11 at 862, citing, Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 12 (1979). Review of the instant case reveals Petitioner was present at his parole hearing, was given 13 an opportunity to be heard, and was provided a statement of reasons for the parole board’s 14 decision. (See Pet. Ex. A.) Per the Supreme Court, this is “the beginning and the end of the 15 federal habeas courts’ inquiry into whether [the prisoner] received due process.” Swarthout, 131 16 S.Ct. at 862. “The Constitution does not require more [process].” Greenholtz, 442 U.S. at 16. 17 Therefore, the instant petition does not present cognizable claims for relief and should be denied. 18 RECOMMENDATION 19 20 21 Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas corpus be DENIED and the pending motion to dismiss be DENIED as moot. This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, 22 United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) 23 and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District 24 of California. 25 Within thirty (30) days after date of service of this Findings and Recommendation, any 26 party may file written objections with the Court and serve a copy on all parties. Such a document 27 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies 28 to the Objections shall be served and filed within fourteen (14) days after date of service of the 2 1 Objections. The Finding and Recommendation will then be submitted to the District Court for 2 review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are 3 advised that failure to file objections within the specified time may waive the right to appeal the 4 Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 6 7 8 IT IS SO ORDERED. Dated: 3b142a February 22, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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