-GSA (HC) Puerto v. Lopez, No. 1:2010cv01737 - Document 15 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the 1 Petition for Writ of Habeas Corpus be Summarily Dismissed with Prejudice for Failure to State Cognizable Claims for Relief signed by Magistrate Judge Gary S. Austin on 01/25/2011. Referred to Judge Wanger; Objections to F&R due by 2/28/2011. (Flores, E)

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-GSA (HC) Puerto v. Lopez Doc. 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSE RODRIGUEZ PUERTO, 11 12 13 14 15 ) ) Petitioner, ) ) v. ) ) RAUL LOPEZ, Warden, ) ) Respondent. ) ____________________________________) 1:10-CV-01737 OWW GSA HC FINDINGS AND RECOMMENDATION 16 Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 17 28 U.S.C. § 2254. He is represented in this action by Mario Rodriguez, Esq. 18 On September 20, 2010, Petitioner filed the instant petition for writ of habeas corpus. 19 Petitioner challenges the California court decisions upholding an April 8, 2009, decision of the 20 California Board of Parole Hearings. Petitioner claims the California courts unreasonably 21 determined that there was some evidence he posed a current risk of danger to the public if released. 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 that 24 California law creates a liberty interest in parole that may be enforced under the Due Process Clause. 25 Hayward v. Marshall, 602 F.3d 546, 561-563 (9th Cir.2010); Pearson v. Muntz, 606 F.3d 606, 608- 26 609 (9th Cir. 2010); Cooke v. Solis, 606 F.3d 1206, 1213 (2010), rev’d, Swarthout v. Cooke, ___ 27 U.S.___, ___ S.Ct. ___, 2011 WL 197627 (Jan. 24, 2011). The Ninth Circuit instructed reviewing 28 U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 federal district courts to determine whether California’s application of California’s “some evidence” 2 rule 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. Cooke, 5 ___ U.S.___, ___ S.Ct. ___, 2011 WL 197627 (Jan. 24, 2011). In Swarthout, the Supreme Court 6 held that “the responsibility for assuring that the constitutionally adequate procedures governing 7 California’s parole system are properly applied rests with California courts, and is no part of the 8 Ninth Circuit’s business.” The federal habeas court’s inquiry into whether a prisoner denied parole 9 received due process is limited to determining whether the prisoner “was allowed an opportunity to 10 be heard and was provided a statement of the reasons why parole was denied.” Id., citing, Greenholtz 11 v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). Review of the instant 12 case reveals Petitioner was present at his parole hearing, was given an opportunity to be heard, and 13 was provided a statement of reasons for the parole board’s decision. (See Petition Ex. 11.) Per the 14 Supreme Court, this is “the beginning and the end of the federal habeas courts’ inquiry into whether 15 [the prisoner] received due process.” Swarthout, 2011 WL 197627. “The Constitution does not 16 require more [process].” Greenholtz, 442 U.S. at 16. Therefore, the instant petition does not present 17 cognizable claims for relief and should be summarily dismissed. 18 19 20 21 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas corpus be SUMMARILY DISMISSED with prejudice for failure to state cognizable claims for relief. This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United 22 States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 23 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. 24 25 Within thirty (30) days after date of service of this Findings and Recommendation, any party 26 may file written objections with the Court and serve a copy on all parties. Such a document should 27 be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 28 Objections shall be served and filed within fourteen (14) days after date of service of the Objections. U .S. D istrict C ourt E. D . C alifornia 2 1 The Finding and Recommendation will then be submitted to the District Court for review of the 2 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure 3 to file objections within the specified time may waive the right to appeal the Order of the District 4 Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 6 IT IS SO ORDERED. 7 Dated: 6i0kij January 25, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 3

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