-SKO (HC) Davis v. Clark, No. 1:2010cv01730 - Document 16 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS re Respondent's Motion to Dismiss the Petition; FINDINGS and RECOMMENDATIONS to Dismiss the Petition without Leave to Amend, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 5/31/11. Referred to Judge Ishii. (Verduzco, M)
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-SKO (HC) Davis v. Clark Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL S. DAVIS, 10 Petitioner, 11 12 13 v. KEN CLARK, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01730-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 13-14) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE (DOCS. 1, 13-14) 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. Pursuant to 28 U.S.C. § 636(c)(1), 19 Petitioner has consented to the jurisdiction of the United States 20 Magistrate Judge to conduct all further proceedings in the case, 21 including the entry of final judgment, by manifesting consent in 22 a signed writing filed by Petitioner on October 14, 2010 (doc. 23 5). Pending before the Court is the Respondent’s motion to 24 dismiss the petition, which was filed on February 15, 2011, and 25 served on Petitioner on the same date. (Docs. 13-14; doc. 13, p. 26 4.) No opposition was filed by Petitioner. 27 /// 28 1 Dockets.Justia.com 1 I. 2 Because the petition was filed after April 24, 1996, the Proceeding pursuant to a Motion to Dismiss 3 effective date of the Antiterrorism and Effective Death Penalty 4 Act of 1996 (AEDPA), the AEDPA applies to the petition. 5 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 6 1484, 1499 (9th Cir. 1997). Lindh v. 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 10 of the Constitution, laws, or treaties of the United States. 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 28 Rule 4 of the Rules Governing Section 2254 Cases (Habeas 15 Rules) allows a district court to dismiss a petition if it 16 “plainly appears from the face of the petition and any exhibits 17 annexed to it that the petitioner is not entitled to relief in 18 the district court....” 19 The Ninth Circuit has allowed respondents to file motions to 20 dismiss pursuant to Rule 4 instead of answers if the motion to 21 dismiss attacks the pleadings by claiming that the petitioner has 22 failed to exhaust state remedies or has violated the state’s 23 procedural rules. 24 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 25 a petition for failure to exhaust state remedies); White v. 26 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 27 review a motion to dismiss for state procedural default); Hillery 28 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). See, e.g., O’Bremski v. Maass, 915 F.2d 418, 2 1 Thus, a respondent may file a motion to dismiss after the Court 2 orders the respondent to respond, and the Court should use Rule 4 3 standards to review a motion to dismiss filed before a formal 4 answer. 5 See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, upon being directed to respond to the petition 6 by way of answer or motion, Respondent filed the motion to 7 dismiss. 8 contained in the pleadings and in copies of the official records 9 of state parole and judicial proceedings which have been provided The material facts pertinent to the motion are 10 by the parties, and as to which there is no factual dispute. 11 Because Respondent's motion to dismiss is similar in procedural 12 standing to motions to dismiss on procedural grounds, the Court 13 will review Respondent’s motion to dismiss pursuant to its 14 authority under Rule 4. 15 II. 16 Petitioner alleges that he was an inmate of the California Background 17 Substance Abuse Treatment Facility and State Prison at Corcoran, 18 California (CSATF) serving a sentence of twenty-five (25) years 19 to life imposed by the San Bernardino County Superior Court upon 20 Petitioner’s conviction of first degree murder in 1994. 21 1.) 22 Parole Hearings (BPH) finding Petitioner unsuitable for parole 23 after a hearing held on September 4, 2008. 24 alleges that his due process rights were violated because the BPH 25 denied parole without any evidence to support the determination 26 that Petitioner posed a current, unreasonable risk of danger. 27 (Pet. 3.) 28 Petitioner’s commitment offense, unstable social history, prior (Pet. Petitioner challenges the decision of California’s Board of (Pet. 3.) Petitioner Petitioner argues that the BPH improperly relied on 3 1 juvenile criminality, and lack of insight into the commitment 2 offense. 3 (Pet. 11-19.) Petitioner has attached a copy of the transcript of the 4 parole hearing held before the BPH on September 4, 2008. 5 22-151.) 6 documents before the parole hearing and was given an opportunity 7 to correct or clarify the record (pet. 28-29, 115); appeared at 8 the hearing (pet. 22, 138); addressed the BPH under oath 9 concerning multiple factors of parole suitability (pet. 29-120); (Pet. The transcript reflects that Petitioner received 10 made a personal statement to the BPH concerning his suitability 11 for parole (pet. 134-36); and was represented by counsel, who 12 advocated and made a closing statement in favor of parole on 13 Petitioner’s behalf (pet. 22, 27, 127-34). 14 Further, Petitioner was present when the BPH stated the 15 reasons for their decision to deny Petitioner parole for three 16 years, which included Petitioner’s commitment offense that 17 involved an attack on multiple victims, one of whom was pregnant; 18 his history of criminality and drug use; his unstable social 19 history; his limited insight into the crime and minimization of 20 his criminal conduct; and the prosecutor’s opposition to release. 21 (Pet. 138-50.) 22 III. 23 The Supreme Court has characterized as reasonable the Failure to State a Cognizable Claim 24 decision of the Court of Appeals for the Ninth Circuit that 25 California law creates a liberty interest in parole protected by 26 the Fourteenth Amendment Due Process Clause, which in turn 27 requires fair procedures with respect to the liberty interest. 28 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 4 1 However, the procedures required for a parole determination 2 are the minimal requirements set forth in Greenholtz v. Inmates 3 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 4 Swarthout v. Cooke, 131 S.Ct. 859, 862. 5 rejected inmates’ claims that they were denied a liberty interest 6 because there was an absence of “some evidence” to support the 7 decision to deny parole. 8 9 10 11 12 13 14 15 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.) 16 Swarthout, 131 S.Ct. 859, 862. 17 petitioners had received the process that was due as follows: 18 19 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 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 as to the reasons why parole was denied.... 2 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 3 4 Swarthout, 131 S.Ct. at 862. 5 noted that California’s “some evidence” rule is not a substantive 6 federal requirement, and correct application of California’s 7 “some evidence” standard is not required by the federal Due 8 Process Clause. 9 The Court in Swarthout expressly Id. at 862-63. Here, Petitioner asks this Court to engage in the very type 10 of analysis foreclosed by Swarthout. 11 facts that point to a real possibility of constitutional error or 12 that otherwise would entitle Petitioner to habeas relief because 13 California’s “some evidence” requirement is not a substantive 14 federal requirement. 15 support the denial of parole is not within the scope of this 16 Court’s habeas review under 28 U.S.C. § 2254. 17 Petitioner does not state Review of the record for “some evidence” to Petitioner cites state law concerning the appropriate 18 application of the “some evidence” rule to the factors present in 19 his case. 20 on state law, they are not cognizable on federal habeas corpus. 21 Federal habeas relief is not available to retry a state issue 22 that does not rise to the level of a federal constitutional 23 violation. 24 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 25 errors in the application of state law are not cognizable in 26 federal habeas corpus. 27 Cir. 2002). 28 To the extent that Petitioner’s claim or claims rest Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged Souch v. Schiavo, 289 F.3d 616, 623 (9th A petition for habeas corpus should not be dismissed without 6 1 leave to amend unless it appears that no tenable claim for relief 2 can be pleaded were such leave granted. 3 F.2d 13, 14 (9th Cir. 1971). 4 Jarvis v. Nelson, 440 Here, Petitioner did not claim that he lacked an opportunity 5 to be heard or a statement of reasons for the BPH’s decision. 6 The allegations in the petition indicate that Petitioner attended 7 the parole suitability hearing, made statements to the BPH, and 8 received a statement of reasons for the decision of the BPH. 9 Thus, Petitioner’s own allegations and attached documentation 10 establish that he had an opportunity to be heard and a statement 11 of reasons for the decisions in question. 12 not appear that Petitioner could state a tenable due process 13 claim. 14 It, therefore, does Accordingly, it will be recommended that the Respondent’s 15 motion to dismiss be granted, and the petition be dismissed 16 without leave to amend. 17 IV. 18 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 19 appealability, an appeal may not be taken to the Court of Appeals 20 from the final order in a habeas proceeding in which the 21 detention complained of arises out of process issued by a state 22 court. 23 U.S. 322, 336 (2003). 24 only if the applicant makes a substantial showing of the denial 25 of a constitutional right. 26 petitioner must show that reasonable jurists could debate whether 27 the petition should have been resolved in a different manner or 28 that the issues presented were adequate to deserve encouragement 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). 7 Under this standard, a 1 to proceed further. 2 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 3 certificate should issue if the Petitioner shows that jurists of 4 reason would find it debatable whether the petition states a 5 valid claim of the denial of a constitutional right and that 6 jurists of reason would find it debatable whether the district 7 court was correct in any procedural ruling. 8 529 U.S. 473, 483-84 (2000). 9 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 10 the claims in the habeas petition, generally assesses their 11 merits, and determines whether the resolution was debatable among 12 jurists of reason or wrong. 13 applicant to show more than an absence of frivolity or the 14 existence of mere good faith; however, it is not necessary for an 15 applicant to show that the appeal will succeed. 16 Cockrell, 537 U.S. at 338. 17 certificate of appealability when it enters a final order adverse 18 to the applicant. 19 Cases. 20 Id. It is necessary for an Miller-El v. A district court must issue or deny a Rule 11(a) of the Rules Governing Section 2254 Here, it does not appear that reasonable jurists could 21 debate whether the petition should have been resolved in a 22 different manner. 23 of the denial of a constitutional right. 24 recommended that the Court decline to issue a certificate of 25 appealability. Petitioner has not made a substantial showing 26 V. 27 Accordingly, it is RECOMMENDED that: 28 1) Accordingly, it will be Recommendations Respondent’s motion to dismiss the petition be granted; 8 1 and 2 2) The petition be DISMISSED without leave to amend for 3 failure to state a claim cognizable in a proceeding pursuant to 4 28 U.S.C. § 2254; and 5 6 3) appealability; and 7 8 The Court DECLINE to issue a certificate of 4) The Clerk be DIRECTED to close the action because an order of dismissal would terminate the action in its entirety. 9 These findings and recommendations are submitted to the 10 United States District Court Judge assigned to the case, pursuant 11 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 12 the Local Rules of Practice for the United States District Court, 13 Eastern District of California. 14 being served with a copy, any party may file written objections 15 with the Court and serve a copy on all parties. 16 should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendations.” 18 and filed within fourteen (14) days (plus three (3) days if 19 served by mail) after service of the objections. 20 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 21 636 (b)(1)(C). 22 objections within the specified time may waive the right to 23 appeal the District Court’s order. 24 1153 (9th Cir. 1991). 25 IT IS SO ORDERED. 26 Dated: ie14hj 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 May 31, 2011 Martinez v. Ylst, 951 F.2d /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 27 28 9
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