(HC) White v. Hartley, No. 1:2010cv01635 - Document 14 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Failure to State a Cognizable Claim, Deny 13 Petitioner's Motion for Briefing as Moot, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 3/4/11. Referred to Judge O'Neill. (Verduzco, M)
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(HC) White v. Hartley Doc. 14 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JACKSON WHITE, 11 Petitioner, 12 13 14 v. J. HARTLEY, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01635-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1), DENY PETITIONER’S MOTION FOR BRIEFING AS MOOT (DOC. 13), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. 23 filed on September 10, 2010, and 2) Petitioner’s motion to permit 24 briefing before the Court rules on the petition, filed on 25 February 7, 2011. The matter has been referred to the Pending before the Court is 1) the petition, 26 I. 27 Rule 4 of the Rules Governing § 2254 Cases in the United 28 Sua Sponte Consideration of Dismissal of the Petition States District Courts (Habeas Rules) requires the Court to make 1 Dockets.Justia.com 1 a preliminary review of each petition for writ of habeas corpus. 2 The Court must summarily dismiss a petition "[i]f it plainly 3 appears from the petition and any attached exhibits that the 4 petitioner is not entitled to relief in the district court....” 5 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 6 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 7 1990). 8 grounds of relief available to the Petitioner; 2) state the facts 9 supporting each ground; and 3) state the relief requested. Habeas Rule 2(c) requires that a petition 1) specify all 10 Notice pleading is not sufficient; rather, the petition must 11 state facts that point to a real possibility of constitutional 12 error. 13 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 14 Allison, 431 U.S. 63, 75 n.7 (1977)). 15 that are vague, conclusory, or palpably incredible are subject to 16 summary dismissal. 17 Cir. 1990). 18 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 19 corpus either on its own motion under Habeas Rule 4, pursuant to 20 the respondent's motion to dismiss, or after an answer to the 21 petition has been filed. 22 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 23 (9th Cir. 2001). 24 Advisory Committee Notes to Habeas Rule Here, Respondent answered the petition on December 16, 2010, 25 and Petitioner filed a traverse on January 10, 2011. 26 Subsequently, the United States Supreme Court decided Swarthout 27 v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 28 Swarthout appears to govern the instant case, and because no 2 Because 1 motion to dismiss the petition has been filed, the Court proceeds 2 to consider whether the petition states a cognizable claim for 3 relief. 4 II. 5 Petitioner alleges that he is an inmate of Avenal State Background 6 Prison who is serving a sentence of sixteen (16) years to life 7 imposed in the Kern County Superior Court upon Petitioner’s 1995 8 conviction of second degree murder and robbery with a principal 9 armed with a gun. (Pet. 1.) Petitioner challenges the decision 10 of the governor of California made in December 2009 to rescind 11 the decision of the Board of Parole Hearings (BPH) finding 12 Petitioner suitable for parole that had been made after a hearing 13 held on July 8, 2009. 14 court decisions upholding the governor’s parole determination 15 were objectively unreasonable. 16 Petitioner also argues that the state (Pet. 14-18.) It appears from Petitioner’s allegations that he attended 17 the parole hearing before the Board on July 8, 2009. (Pet. 15:1- 18 4.) 19 a history of gang association, and parole plans. 20 Petitioner was given a statement of reasons for the BPH’s grant 21 of parole. 22 rescinded the grant of parole, Petitioner received a summary of 23 the governor’s reasons. 24 indicates that his decision was based on Petitioner’s failure to 25 gain sufficient insight into his role in the commitment offense 26 and his failure to develop coping strategies to resist gang 27 participation in the future; the governor concluded that 28 Petitioner still posed a risk of recidivism, violence, and an Petitioner spoke to the Board about the commitment offense, (Pet. 17-18.) (Pet. 15-17.) Thereafter, when the governor (Pet. 18.) 3 The governor’s summary 1 2 unreasonable risk to public safety. (Pet. 18.) Petitioner asks this Court to review whether there was some 3 evidence to support the conclusion that Petitioner was unsuitable 4 for parole because he posed a current threat of danger to the 5 public if released. 6 1) he did not receive an individualized consideration of the 7 criteria for release on parole as set forth in state statutes and 8 regulations, and thus he was denied due process of law under the 9 Fourteenth Amendment (Pet. 19, 31-33); and 2) there is no (Pet. 9, 19.) Petitioner raises two claims: 10 evidence to support the governor’s conclusion that Petitioner was 11 a current danger if released, and thus Petitioner was denied due 12 process of law under the Fourteenth Amendment (Pet. 20-35). 13 Petitioner contends that the state court decisions upholding the 14 governor’s decision thus were objectively unreasonable. 15 33-35.) (Pet. 16 III. 17 Because the petition was filed after April 24, 1996, the Failure to Allege a Claim Cognizable on Habeas Corpus 18 effective date of the Antiterrorism and Effective Death Penalty 19 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 20 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 21 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 22 A district court may entertain a petition for a writ of 23 habeas corpus by a person in custody pursuant to the judgment of 24 a state court only on the ground that the custody is in violation 25 of the Constitution, laws, or treaties of the United States. 28 26 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 27 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 28 16 (2010) (per curiam). 4 Lindh 1 The Supreme Court has characterized as reasonable the 2 decision of the Court of Appeals for the Ninth Circuit that 3 California law creates a liberty interest in parole protected by 4 the Fourteenth Amendment Due Process Clause, which in turn 5 requires fair procedures with respect to the liberty interest. 6 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 7 However, the procedures required for a parole determination 8 are the minimal requirements set forth in Greenholtz v. Inmates 9 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 10 Swarthout v. Cooke, 131 S.Ct. 859, 862. 11 rejected inmates’ claims that they were denied a liberty interest 12 because there was an absence of “some evidence” to support the 13 decision to deny parole. 14 15 16 17 18 19 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 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. 5 1 2 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.) 3 Swarthout, 131 S.Ct. 859, 862. The Court concluded that the 4 petitioners had received the process that was due as follows: 5 6 7 8 9 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.... That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 10 Swarthout, 131 S.Ct. at 862. 11 noted that California’s “some evidence” rule is not a substantive 12 federal requirement, and correct application of California’s 13 “some evidence” standard is not required by the federal Due 14 Process Clause. 15 The Court in Swarthout expressly Id. at 862-63. Here, Petitioner asks this Court to engage in the very type 16 of analysis foreclosed by Swarthout. 17 facts that point to a real possibility of constitutional error or 18 that otherwise would entitle Petitioner to habeas relief because 19 California’s “some evidence” requirement is not a substantive 20 federal requirement. 21 support the denial of parole is not within the scope of this 22 Court’s habeas review under 28 U.S.C. § 2254. 23 Petitioner does not state Review of the record for “some evidence” to Petitioner’s claim that he did not receive a sufficiently 24 individualized consideration of the factors appropriate under 25 California law is likewise not cognizable. 26 process to which Petitioner is entitled does not include any 27 particular degree of individualized consideration. 28 The minimal due Petitioner cites state law concerning the appropriate weight 6 1 to be given to evidence. 2 or claims rest on state law, it is not cognizable on federal 3 habeas corpus. 4 state issue that does not rise to the level of a federal 5 constitutional violation. 6 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 7 (1991). 8 cognizable in federal habeas corpus. 9 616, 623 (9th Cir. 2002). 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 10 A petition for habeas corpus should not be dismissed without 11 leave to amend unless it appears that no tenable claim for relief 12 can be pleaded were such leave granted. 13 F.2d 13, 14 (9th Cir. 1971). 14 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition that 15 Petitioner attended the parole suitability hearing, made 16 statements to the BPH, and received a statement of reasons for 17 the decisions of the BPH and the governor. 18 own allegations establish that he had an opportunity to be heard 19 and a statement of reasons for the decisions in question. 20 therefore does not appear that Petitioner could state a tenable 21 due process claim. 22 23 Thus, Petitioner’s It Accordingly, it will be recommended that the petition be dismissed without leave to amend. 24 IV. 25 In his motion filed on February 7, 2011, Petitioner requests Petitioner’s Request for Briefing 26 an opportunity to brief the Swarthout decision before the Court 27 rules on the petition. 28 other response to Petitioner’s request for briefing. Respondent did not file any opposition or 7 1 Because the Magistrate Judge is filing findings and 2 recommendations to be considered by the District Judge, 3 Petitioner will have an opportunity to file objections to the 4 findings and recommendations. 5 for briefing will be denied as moot. Accordingly, Petitioner’s request 6 V. 7 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 8 appealability, an appeal may not be taken to the Court of Appeals 9 from the final order in a habeas proceeding in which the 10 detention complained of arises out of process issued by a state 11 court. 12 U.S. 322, 336 (2003). 13 only if the applicant makes a substantial showing of the denial 14 of a constitutional right. 15 petitioner must show that reasonable jurists could debate whether 16 the petition should have been resolved in a different manner or 17 that the issues presented were adequate to deserve encouragement 18 to proceed further. 19 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 20 certificate should issue if the Petitioner shows that jurists of 21 reason would find it debatable whether the petition states a 22 valid claim of the denial of a constitutional right and that 23 jurists of reason would find it debatable whether the district 24 court was correct in any procedural ruling. 25 529 U.S. 473, 483-84 (2000). 26 conducts an overview of the claims in the habeas petition, 27 generally assesses their merits, and determines whether the 28 resolution was debatable among jurists of reason or wrong. 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 A Slack v. McDaniel, In determining this issue, a court 8 Id. 1 It is necessary for an applicant to show more than an absence of 2 frivolity or the existence of mere good faith; however, it is not 3 necessary for an applicant to show that the appeal will succeed. 4 Miller-El v. Cockrell, 537 U.S. at 338. 5 A district court must issue or deny a certificate of 6 appealability when it enters a final order adverse to the 7 applicant. 8 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a 10 different manner. 11 of the denial of a constitutional right. 12 should decline to issue a certificate of appealability. Petitioner has not made a substantial showing 13 VI. 14 Accordingly, it is RECOMMENDED that: 15 1) Accordingly, the Court Recommendation The petition for writ of habeas corpus be DISMISSED 16 without leave to amend because Petitioner has failed to state a 17 claim cognizable pursuant to 28 U.S.C. § 2254; and 18 2) Petitioner’s motion for briefing be DENIED as moot; and 19 3) The Court DECLINE to issue a certificate of 20 21 22 appealability; and 4) The Clerk be DIRECTED to close the action because this order terminates the proceeding in its entirety. 23 These findings and recommendations are submitted to the 24 United States District Court Judge assigned to the case, pursuant 25 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 26 the Local Rules of Practice for the United States District Court, 27 Eastern District of California. 28 being served with a copy, any party may file written objections Within thirty (30) days after 9 1 with the Court and serve a copy on all parties. 2 should be captioned “Objections to Magistrate Judge’s Findings 3 and Recommendations.” 4 and filed within fourteen (14) days (plus three (3) days if 5 served by mail) after service of the objections. 6 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 7 636 (b)(1)(C). 8 objections within the specified time may waive the right to 9 appeal the District Court’s order. 10 Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 IT IS SO ORDERED. 13 Dated: ie14hj March 4, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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