-SKO (HC) Otte v. Hartley, No. 1:2010cv01998 - Document 12 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS re: Respondent's Motion to Dismiss 10 the Petition 1 ; FINDINGS and RECOMMENDATIONS to Dismiss the Petition without Leave to Amend 1 , Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 6/13/11. Referred to Judge O'Neill. (Verduzco, M)
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-SKO (HC) Otte v. Hartley Doc. 12 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DEVIN OTTE, 10 Petitioner, 11 12 13 v. J. HARTLEY, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01998-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 10, 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 16 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 The matter has been referred to the Magistrate Judge pursuant to 20 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 21 before the Court is Respondent’s motion to dismiss the petition, 22 which was filed on March 8, 2011. 23 to the motion on March 30, 2011. Pending Petitioner filed an opposition No reply was filed. 24 I. 25 Because the petition was filed after April 24, 1996, the Proceeding by a Motion to Dismiss 26 effective date of the Antiterrorism and Effective Death Penalty 27 Act of 1996 (AEDPA), the AEDPA applies to the petition. 28 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d Lindh v. 1 Dockets.Justia.com 1 1484, 1499 (9th Cir. 1997). 2 A district court may entertain a petition for a writ of 3 habeas corpus by a person in custody pursuant to the judgment of 4 a state court only on the ground that the custody is in violation 5 of the Constitution, laws, or treaties of the United States. 6 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 7 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 8 16 (2010) (per curiam). 28 9 Rule 4 of the Rules Governing Section 2254 Cases in the 10 District Courts (Habeas Rules) allows a district court to dismiss 11 a petition if it “plainly appears from the face of the petition 12 and any exhibits annexed to it that the petitioner is not 13 entitled to relief in the district court....” 14 The Ninth Circuit has allowed respondents to file motions to 15 dismiss pursuant to Rule 4 instead of answers if the motion to 16 dismiss attacks the pleadings by claiming that the petitioner has 17 failed to exhaust state remedies or has violated the state’s 18 procedural rules. 19 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 20 a petition for failure to exhaust state remedies); White v. 21 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 22 review a motion to dismiss for state procedural default); Hillery 23 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 24 Thus, a respondent may file a motion to dismiss after the Court 25 orders the respondent to respond, and the Court should use Rule 4 26 standards to review a motion to dismiss filed before a formal 27 answer. 28 /// See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. 2 1 Here, upon being directed to respond to the petition by way 2 of answer or motion, Respondent filed the motion to dismiss. 3 material facts pertinent to the motion are found in the pleadings 4 and in copies of the official records of state parole and 5 judicial proceedings which have been provided by the parties, and 6 as to which there is no factual dispute. 7 The Because Respondent's motion to dismiss is similar in 8 procedural standing to motions to dismiss on procedural grounds, 9 the Court will review Respondent’s motion to dismiss pursuant to 10 its authority under Rule 4. 11 II. 12 Petitioner alleged that he was an inmate of the Avenal State Background 13 Prison at Avenal, California, serving a sentence of twenty-five 14 (25) years to life imposed by the Los Angeles County Superior 15 Court upon Petitioner’s conviction in December 1990 of first 16 degree murder. 17 California’s Board of Parole Hearings (BPH) made after a hearing 18 held on March 10, 2008, finding Petitioner unsuitable for parole 19 because he presented a risk to the public and society. 20 6-7, 11.) 21 (Pet. 1.) Petitioner challenges the decision of (Id. at Petitioner raises the following claims: 1) the BPH’s 22 decision violated Petitioner’s right to due process of law under 23 the Fourteenth Amendment because there was no reliable evidence 24 supporting the finding that Petitioner posed an unreasonable risk 25 of danger to society if released from prison; 2) the BPH’s 26 decision violated Petitioner’s right to due process of law 27 because it did not reflect due consideration of the factors of 28 parole suitability specified in state law, and it was arbitrary; 3 1 and 3) decisions of the state courts upholding the BPH’s decision 2 were objectively unreasonable and thus deprived Petitioner of due 3 process of law. 4 did not consider favorable suitability factors, and the evidence 5 concerning Petitioner’s suitability actually supported a grant of 6 parole. (Pet. at 6-7.) Petitioner argues that the BPH 7 The petition and the transcript of the parole proceedings 8 reflect that Petitioner had an opportunity to submit documents 9 and to testify and make a final statement at the parole hearing, 10 and Petitioner received a statement of reasons for the BPH’s 11 finding of unsuitability. 12 15-87, 95-101, 111-21.) 13 offense, Petitioner’s history, and a psychological evaluation. 14 (Id. at 111-21.) (Pet. 14; mot., doc. 10-1, 2, 5, 13, The reasons included the commitment 15 The Los Angeles County Superior Court denied Petitioner’s 16 petition for writ of habeas corpus on June 12, 2009, reasoning 17 that there was some evidence to support the BPH’s findings that 18 the commitment offense was cruel and carried out in a calculated 19 and dispassionate manner, Petitioner had not fully expressed 20 remorse regarding the victim, and Petitioner had a significant 21 history of escalating criminality. 22 the BPH’s decision. 23 Thus, some evidence supported (Pet. 38, 42, 46-48.) The California Court of Appeal, Second Appellate District, 24 denied Petitioner’s petition for writ of mandate or habeas corpus 25 on July 22, 2010, and the California Supreme Court denied 26 Petitioner’s petition for review on September 29, 2010. 27 50-52.) 28 /// 4 (Pet. 1 III. 2 The Supreme Court has characterized as reasonable the Failure to State a Cognizable Due Process Claim 3 decision of the Court of Appeals for the Ninth Circuit that 4 California law creates a liberty interest in parole protected by 5 the Fourteenth Amendment Due Process Clause, which in turn 6 requires fair procedures with respect to the liberty interest. 7 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 8 However, the procedures required for a parole determination 9 are the minimal requirements set forth in Greenholtz v. Inmates 10 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 11 Swarthout v. Cooke, 131 S.Ct. 859, 862. 12 rejected inmates’ claims that they were denied a liberty interest 13 because there was an absence of “some evidence” to support the 14 decision to deny parole. 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 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 3 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.) 4 Swarthout, 131 S.Ct. 859, 862. The Court concluded that the 5 petitioners had received the process that was due as follows: 6 7 8 9 10 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. 11 Swarthout, 131 S.Ct. at 862. 12 noted that California’s “some evidence” rule is not a substantive 13 federal requirement, and correct application of California’s 14 “some evidence” standard is not required by the federal Due 15 Process Clause. 16 The Court in Swarthout expressly Id. at 862-63. Petitioner argues that the “some evidence” rule was not 17 correctly applied in his case. 18 engage in the very type of analysis foreclosed by Swarthout. 19 Petitioner does not state facts that point to a real possibility 20 of constitutional error or that otherwise would entitle 21 Petitioner to habeas relief because California’s “some evidence” 22 requirement is not a substantive federal requirement. 23 the record for “some evidence” to support the denial of parole is 24 not within the scope of this Court’s habeas review under 28 25 U.S.C. § 2254. 26 Petitioner asks this Court to Review of Petitioner cites state law concerning the parole suitability 27 determination. 28 rest on state law, they are not cognizable on federal habeas To the extent that Petitioner’s claim or claims 6 1 corpus. 2 issue that does not rise to the level of a federal constitutional 3 violation. 4 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 5 errors in the application of state law are not cognizable in 6 federal habeas corpus. 7 Cir. 2002). 8 9 Federal habeas relief is not available to retry a state Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged Souch v. Schiavo, 289 F.3d 616, 623 (9th Petitioner argues that the BPH did not duly consider the factors of parole suitability specified in state law. However, 10 the standard of procedural due process applicable to parole 11 hearings as articulated in Greenholtz does not require any 12 particular type or level of consideration of parole suitability 13 factors. 14 decision was arbitrary, the record of the parole hearing and 15 decision reflects that the BPH considered the evidence of various 16 factors of parole suitability and reached a decision based on 17 reasoning grounded in those factors. 18 support Petitioner’s generalized allegation that the BPH 19 proceeded arbitrarily. 20 Further, although Petitioner argues that the BPH’s The record thus does not The Court concludes that because Petitioner failed to state 21 due process claims that are cognizable in this proceeding, the 22 due process claims must be dismissed. 23 A petition for habeas corpus should not be dismissed without 24 leave to amend unless it appears that no tenable claim for relief 25 can be pleaded were such leave granted. 26 F.2d 13, 14 (9th Cir. 1971). 27 28 Jarvis v. Nelson, 440 Here, Petitioner has not alleged that he lacked an opportunity to be heard or a statement of reasons. 7 However, the 1 allegations in the petition reveal that Petitioner attended the 2 parole suitability hearing, made statements to the BPH, and 3 received a statement of reasons for the decision of the BPH. 4 Thus, Petitioner’s own allegations establish that Petitioner had 5 an opportunity to be heard and received a statement of reasons 6 for the decision in question. 7 Petitioner could state a tenable due process claim. 8 9 10 11 It therefore does not appear that Accordingly, it will be recommended that Petitioner’s due process claims concerning the BPH’s decision be dismissed without leave to amend. Because Petitioner has not established a violation by the 12 parole authorities of his rights under the Fourteenth Amendment, 13 the decisions of the state courts upholding the BPH’s decision 14 could not have resulted in either 1) a decision that was contrary 15 to, or involved an unreasonable application of, clearly 16 established federal law, as determined by the Supreme Court of 17 the United States; or 2) a decision that was based on an 18 unreasonable determination of the facts in light of the evidence 19 presented in the state court proceedings. 20 failed to state facts concerning the state court decisions that 21 would entitle him to relief. Thus, Petitioner has See, 28 U.S.C. § 2254(d). 22 Therefore, Petitioner’s due process claim with respect to 23 the state court decisions should likewise be dismissed without 24 leave to amend. 25 IV. 26 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 27 appealability, an appeal may not be taken to the Court of Appeals 28 from the final order in a habeas proceeding in which the 8 1 detention complained of arises out of process issued by a state 2 court. 3 U.S. 322, 336 (2003). 4 only if the applicant makes a substantial showing of the denial 5 of a constitutional right. 6 petitioner must show that reasonable jurists could debate whether 7 the petition should have been resolved in a different manner or 8 that the issues presented were adequate to deserve encouragement 9 to proceed further. 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 10 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 11 certificate should issue if the Petitioner shows that jurists of 12 reason would find it debatable whether the petition states a 13 valid claim of the denial of a constitutional right and that 14 jurists of reason would find it debatable whether the district 15 court was correct in any procedural ruling. 16 529 U.S. 473, 483-84 (2000). 17 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 18 the claims in the habeas petition, generally assesses their 19 merits, and determines whether the resolution was debatable among 20 jurists of reason or wrong. 21 applicant to show more than an absence of frivolity or the 22 existence of mere good faith; however, it is not necessary for an 23 applicant to show that the appeal will succeed. 24 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 25 A district court must issue or deny a certificate of 26 appealability when it enters a final order adverse to the 27 applicant. 28 /// Rule 11(a) of the Rules Governing Section 2254 Cases. 9 1 Here, it does not appear that reasonable jurists could 2 debate whether the petition should have been resolved in a 3 different manner. 4 of the denial of a constitutional right. 5 6 Petitioner has not made a substantial showing Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 7 V. 8 Accordingly, it is RECOMMENDED that: 9 1) Respondent’s motion to dismiss the petition be GRANTED; 11 2) The petition be DISMISSED without leave to amend; and 12 3) The Court DECLINE to issue a certificate of 10 13 14 15 Recommendation and appealability; and 4) The Clerk be DIRECTED to close the case because an order of dismissal would terminate the action in its entirety. 16 These findings and recommendations are submitted to the 17 United States District Court Judge assigned to the case, pursuant 18 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 19 the Local Rules of Practice for the United States District Court, 20 Eastern District of California. 21 being served with a copy, any party may file written objections 22 with the Court and serve a copy on all parties. 23 should be captioned “Objections to Magistrate Judge’s Findings 24 and Recommendations.” 25 and filed within fourteen (14) days (plus three (3) days if 26 served by mail) after service of the objections. 27 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 28 636 (b)(1)(C). 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 10 1 objections within the specified time may waive the right to 2 appeal the District Court’s order. 3 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 4 5 IT IS SO ORDERED. 6 Dated: ie14hj June 13, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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