-SKO (HC) Thermidor v. Clark, No. 1:2010cv02096 - Document 18 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to GRANT Respondent's Motion to Dismiss the 1 Petition Without Leave to Amend for Failure to State a Cognizable Due Process Claim 14 , 1 , 6 ; FINDINGS and RECOMMENDATIONS to Dismiss the Petition Without Leave t o Amend 1 , 6 ; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, (OBJECTIONS DEADLINE: THIRTY (30) DAYS), signed by Magistrate Judge Sheila K. Oberto on 7/6/11: Matter referred to Judge O'Neill. (Hellings, J)
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-SKO (HC) Thermidor v. Clark Doc. 18 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 STANLEY THERMIDOR, 9 Petitioner, 10 v. 11 KEN CLARK, 12 Respondent. 13 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—02096-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE DUE PROCESS CLAIM (Docs. 14, 1, 6) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOCS. 1, 6) 14 FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE 15 16 17 OBJECTIONS DEADLINE: THIRTY (30) DAYS 18 19 Petitioner is a state prisoner proceeding pro se with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 21 The matter has been referred to the Magistrate Judge pursuant to 22 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304. 23 the Court is the Respondent’s motion to dismiss, which was filed 24 on March 7, 2011. 25 on May 31, 2011. Pending before Petitioner filed an opposition to the motion No reply was filed. 26 I. 27 Respondent has filed a motion to dismiss the petition on the 28 ground that Petitioner filed his petition outside of the one-year Consideration of a Motion to Dismiss 1 Dockets.Justia.com 1 limitation period provided for by 28 U.S.C. § 2244(d)(1). 2 Respondent also argues that Petitioner’s claim is not cognizable 3 in a proceeding pursuant to 28 U.S.C. § 2254. 4 Rule 4 of the Rules Governing Section 2254 Cases in the 5 United States District Courts (Habeas Rules) allows a district 6 court to dismiss a petition if it “plainly appears from the face 7 of the petition and any exhibits annexed to it that the 8 petitioner is not entitled to relief in the district court....” 9 The Ninth Circuit has allowed respondents to file motions to 10 dismiss pursuant to Rule 4 instead of answers if the motion to 11 dismiss attacks the pleadings by claiming that the petitioner has 12 failed to exhaust state remedies or has violated the state’s 13 procedural rules. 14 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 15 a petition for failure to exhaust state remedies); White v. 16 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 17 review a motion to dismiss for state procedural default); Hillery 18 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 19 Thus, a respondent may file a motion to dismiss after the Court 20 orders the respondent to respond, and the Court should use Rule 4 21 standards to review a motion to dismiss filed before a formal 22 answer. See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. 23 Respondent's motion to dismiss addresses in part the 24 untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). 25 The material facts pertinent to the motion are mainly found in 26 copies of the official records of state administrative and 27 judicial proceedings which have been provided by Respondent and 28 Petitioner, and as to which there is no factual dispute. 2 Because 1 Respondent has not filed a formal answer, and because 2 Respondent's motion to dismiss is similar in procedural standing 3 to a motion to dismiss for failure to exhaust state remedies or 4 for state procedural default, the Court will review Respondent’s 5 motion to dismiss pursuant to its authority under Rule 4. 6 II. 7 Petitioner alleges he is an inmate of the California Background 8 Substance Abuse Treatment Facility and State Prison at Corcoran, 9 California, serving a sentence of fifteen (15) years to life 10 imposed in the Superior Court of the State of California, County 11 of Orange, on October 6, 1998, upon Petitioner’s conviction of 12 forcible rape, forcible oral copulation, and false imprisonment 13 in violation of Cal. Pen. Code §§ 261, 288A, and 236. 14 Petitioner challenges the decision of California’s Board of 15 Parole Hearings (BPH) finding Petitioner unsuitable for release 16 on parole after a hearing held on May 13, 2009. 17 Petitioner raises the following claims in the petition: 18 BPH denied parole based on a post hoc rationalization, which 19 resulted in a violation of Petitioner’s state and federal rights 20 to due process; 2) Petitioner’s closing statement was cut off at 21 the hearing, which deprived him of the opportunity to express his 22 remorse for the commitment offense and to inform the BPH of the 23 rehabilitative gains he has acquired through his incarceration; 24 3) the BPH’s decision violated Petitioner’s due process rights 25 because it was not supported by any evidence that Petitioner 26 posed an unreasonable risk if released; and 4) the BPH failed to 27 give Petitioner an individualized consideration of pertinent 28 parole suitability factors. (Id. at 10-21, 45.) 3 (Pet. 1.) (Id. at 10.) 1) the 1 The transcript of the hearing held before the BPH submitted 2 by Petitioner in support of the petition (doc. 6) reflects that 3 Petitioner attended the hearing with counsel (id. at 2, 5); 4 received documents before the hearing and had an opportunity to 5 correct or clarify the record (id. at 7, 9, 47, 66); testified 6 before the BPH concerning many factors of parole suitabilty (id. 7 at 10-90, 95-97); and made a statement to the BPH in favor of 8 parole (id. at 105-09). 9 to the BPH in favor of release. 10 Petitioner’s counsel also made statement (Id. at 100-05.) Petitioner was present when the BPH stated the reasons for 11 the finding that Petitioner still posed a present risk of danger 12 to society or a threat to public safety if released. 13 reasons included Petitioner’s failure to understand the nature 14 and magnitude of his commitment offenses, the multiplicity of 15 victims, Petitioner’s lack of insight into the causative factors 16 that led him to offend, his blaming others for his offenses, his 17 problematic relationship with his parents, history of alcohol 18 abuse, some inadequacies in his parole plans, and a psychiatric 19 evaluation. 20 21 22 23 These (Doc. 6, 110-32.) The bottom of the final page of the reported proceedings of the parole hearing states: PAROLE DENIED FIVE YEARS THIS DECISION WILL BE FINAL ON: SEP 10 2009 YOU WILL BE PROMPTLY NOTIFIED, IF PRIOR TO THAT DATE, THE DECISION IS MODIFIED 24 (Doc. 6, 132.) 25 Petitioner’s proof of service reflects that his first state 26 habeas petition challenging the BPH’s decision was filed on 27 January 14, 2010. (Mot., Ex. 2.) 28 4 1 Under the mailbox rule, a prisoner's pro se habeas petition 2 is "deemed filed when he hands it over to prison authorities for 3 mailing to the relevant court." 4 1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988). 5 The mailbox rule applies to federal and state petitions alike. 6 Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing 7 Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and 8 Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). 9 Campbell v. Henry, the court declined to determine whether in Huizar v. Carey, 273 F.3d 1220, In 10 considering the date of mailing, it was more appropriate to use 11 the date on the proof of service or the date of the postmark. 12 Campbell v. Henry, 614 F.3d 1056, 1059 n.2 (9th Cir. 2010). 13 has been held that the date the petition is signed may be 14 inferred to be the earliest possible date an inmate could submit 15 his petition to prison authorities for filing under the mailbox 16 rule. 17 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 18 408 (2005). It Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 19 Here, Petitioner’s proof of service is declared to be true 20 under penalty of perjury, and states the petition was handed to 21 institutional staff to be mailed on January 14, 2010. 22 petition is thus deemed to have been filed in the Superior Court 23 as of January 14, 2010, pursuant to the mailbox rule. 24 The On February 1, 2010, the Superior Court denied the petition 25 because the record revealed that the decision was supported by 26 some evidence of multiple reasons for denying parole. 27 3.) 28 to Petitioner at Corcoran. (Mot., Ex. The court sent a certified copy of the court’s signed order (Id.) 5 1 On February 25, 2010, Petitioner declared under penalty of 2 perjury that on that date he handed to institutional staff a 3 petition for writ of habeas corpus addressed to the California 4 Court of Appeal, Fourth Appellate District (DCA). 5 Thus, the petition will be considered to have been filed in the 6 DCA on that date. 7 petition. 8 9 (Mot., Ex. 4.) On March 4, 2010, the DCA summarily denied the (Mot., Ex. 5.) Petitioner signed and dated a petition directed to the California Supreme Court on March 9, 2010. On March 23, 2010, 10 Petitioner signed and dated a declaration made under penalty of 11 perjury stating that he had handed his petition for review to 12 prison officials on March 9, 2010; it was returned for allegedly 13 deficient address information, but Petitioner had used an address 14 he had been given at prison in response to a query concerning the 15 exact address of the California Supreme Court. 16 the petition to prison staff with his declaration on March 23, 17 2010. Petitioner handed (Mot., Ex. 6.) 18 The docket of the California Supreme Court in Stanley 19 Thermidor, on Habeas Corpus, case number S181325, reflects that 20 an “untimely” petition for review was received on March 26, 2010. 21 On April 5, 2010, Petitioner applied for relief from default. 22 that same date, the petition for review was filed with the 23 permission of the court. 24 DCA, the court summarily denied the petition for review on June 25 9, 2010. 26 On After receipt of the record from the (Mot., Ex. 7.) Petitioner signed and dated the petition filed in this case 27 on November 7, 2010. 28 of service, supported by a declaration under penalty of perjury, (Pet., doc. 1, 6, 23.) 6 His certification 1 2 is also dated November 7, 2010. On November 1, 2010, this court received a motion to submit 3 exhibits to the petition within thirty (30) days of filing a 4 petition for writ of habeas corpus because Petitioner was unable 5 to make copies of the exhibits to the petition. 6 Petitioner signed the motion on October 27, 2010. (Id.) The 7 petition is stamped filed as of November 10, 2010. (Id. at 7-8.) (Id. at 1.) 8 III. 9 Respondent argues that the petition is untimely because it 10 11 12 Statute of Limitations was filed outside the one-year limitations period. A. Legal Standards On April 24, 1996, Congress enacted the Antiterrorism and 13 Effective Death Penalty Act of 1996 (AEDPA). 14 to all petitions for writ of habeas corpus filed after the 15 enactment of the AEDPA. 16 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en 17 banc), cert. denied, 118 S.Ct. 586 (1997). 18 filed his petition in this Court in 2010, the AEDPA applies to 19 the petition. 20 The AEDPA applies Lindh v. Murphy, 521 U.S. 320, 327 Because Petitioner The AEDPA provides a one-year period of limitation in which 21 a petitioner must file a petition for writ of habeas corpus. 22 U.S.C. § 2244(d)(1). 23 24 As amended, subdivision (d) reads: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 25 26 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 27 28 (B) the date on which the impediment to filing an application created by State action in 7 28 1 2 3 4 5 6 7 8 9 10 11 12 violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). B. Commencement of the Running of the Limitations Period 13 The one-year limitation period of § 2244 applies to habeas 14 petitions brought by persons in custody pursuant to state court 15 judgments who challenge administrative decisions, such as the 16 decisions of state prison disciplinary authorities or parole 17 authorities. Shelby v. Bartlett, 391 F.3d 1061, 1063, 1065-66 18 (9th Cir. 2004). However, § 2244(d)(1)(A) is inapplicable to 19 administrative decisions; rather, § 2244(d)(1)(D) applies to 20 petitions challenging such decisions. Redd v. McGrath, 343 F.3d 21 1077, 1081-82 (9th Cir. 2003) (parole board determination). 22 Thus, the statute begins to run on the date that the factual 23 predicate of the claim or claims presented could have been 24 discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D); Redd v. McGrath, 343 F.3d at 1082. In Redd v. 25 26 McGrath, the court concluded that the factual predicate of the 27 habeas claims concerning the denial of parole was the parole 28 8 1 board’s denial of the prisoner’s administrative appeal. 2 1082. Id. at 3 In Shelby and Redd, the pertinent date was the date on 4 which notice of the decision was received by the petitioner. 5 Thus, the statute of limitations was held to have begun running 6 the day after notice of the decision was received. 7 Bartlett, 391 F.3d 1061, 1066; Redd, 343 F.3d at 1082. 8 9 Shelby v. Here, Petitioner was present when the BPH announced its decision; thus, Petitioner received notice of the initial BPH 10 panel decision on May 13, 2009. 11 year period thus began to run on May 14, 2009. 12 transcript of the decision reflects that the decision would not 13 be final until September 10, 2009, when the BPH’s authority to 14 modify the decision would expire. 15 suggests that Petitioner received notice of any interim 16 modification of the decision. 17 Respondent argues that the oneHowever, the (Doc. 6, 132.) Neither party In Redd v. McGrath, 343 F.3d 1077, 1085 (9th Cir. 2003), the 18 date chosen by the court to trigger the running of the statute 19 was the date that the administrative decision to deny parole 20 became final – which was when an administrative appeal taken by 21 the petitioner had been denied. 22 1084. 23 learned of the factual basis for his claim that the parole 24 decision violated his constitutional rights on the date of the 25 administrative tribunal’s denial of the petitioner’s 26 administrative appeal. 27 federal courts which had held that the statute begins running 28 under § 2244(d)(1)(D) on the date “the administrative decision Redd, 343 F.3d at 1080, 1083- The court determined that the petitioner could have first The court relied on decisions of other 9 1 2 Id. at 1084.1 became final.” Generally, it is not knowledge of some facts pertinent to a 3 claim that constitutes discovery of a factual predicate within 4 the meaning of § 2244(d)(1)(D); rather, it is knowledge of facts 5 constituting reasonable grounds for asserting all elements of a 6 claim in good faith. 7 (9th Cir. 2001). 8 or through diligence could discover, the important facts, and not 9 when the prisoner recognizes their legal significance. Hasan v. Galaza, 254 F.3d 1150, 1154-55 The time begins to run when the prisoner knows, Id. at 10 1154 n. 3. 11 the legal significance of the facts themselves before the 12 obligation to exercise due diligence commences and the statutory 13 period starts running. 14 It is not necessary for a petitioner to understand Id. Here, the parole decision itself stated that it would not be 15 final for 120 days. 16 regulations. 17 ch. 10 § 29; Cal. Code Regs. tit. 15, §§ 2041(a) & (h), 2043 18 (2010); Tidwell v. Marshall, 620 F.Supp.2d 1098, 1100-01, (C.D. 19 Cal. 2009) (rejecting the respondent’s contention that the 20 statute began to run on the date of the parole hearing because 21 pursuant to California law as reflected in Cal. Code Regs. tit. 22 15, §§ 2041(a), (h) and 2043, board decisions are characterized 23 as proposed decisions subject to review before an effective date 24 upon finality 120 days after the hearing at which the proposed 25 decision was made). This was consistent with state statutes and See, Cal. Pen. Code § 3041(a), (b); 2005 Cal. Stat. Thus, the initial, proposed decision could 26 27 28 1 Because of waiver of the issue by a party, the court in Redd did not consider whether the initial administrative decision was sufficient to trigger § 2244(d)(1)(D). Id. at 1084 n. 11, 1081 n. 6. 10 1 not logically contain all the facts constituting reasonable 2 grounds for asserting a claim challenging a parole decision 3 because finality – a most important and necessary attribute of a 4 decision – had not yet come to pass. 5 generally consistent with the decisions of other circuits as 6 well. 7 (claims concerning state parole board’s decision to revoke parole 8 and rescind conduct credits accrued under § 2244(d)(1)(D) when 9 the state parole board’s decision to revoke his parole became This application is See, Wade v. Robinson, 327 F.3d 328, 333 (4th Cir. 2003) 10 final because that date was when the petitioner could have 11 discovered through public sources that the decision was in 12 effect); Cook v. New York State Div. of Parole, 321 F.3d 274, 13 280-81 (2nd Cir. 2003); Dulworth v. Evans, 442 F.3d 1265, 1268-69 14 (10th Cir. 2006); but see, Kimbrell v. Cockrell, 311 F.3d 361, 15 364 (5th Cir. 2002) (although the initial decision triggered the 16 running of the statute, the pendency of administrative appeals 17 would toll the running of the statute). 18 Petitioner correctly contends that the statutory limitation 19 period did not commence running until the BPH panel’s decision 20 became final. 21 The Court concludes that In summary, the Court concludes that the date on which the 22 factual predicate of a decision on Petitioner’s parole could 23 have been discovered through the exercise of reasonable diligence 24 was upon the decision’s finality, occurring one hundred twenty 25 (120) days after the decision was rendered on May 13, 2009, or on 26 September 10, 2009. 27 28 The statute thus began running on the next day, September 11, 2009, and absent any tolling, Petitioner had through 11 1 September 10, 2010, to file his petition here. 2 6(a); see, Waldrip v. Hall, 548 F.3d 729, 735 n.2 (9th Cir. 3 2008); Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 4 2001). 5 November 2010, the petition on its face reflects that it was 6 filed outside of the one-year limitation period. Because the petition in the present case was filed in 7 8 9 Fed. R. Civ. P. C. Statutory Tolling Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application for State post-conviction or 10 other collateral review with respect to the pertinent judgment or 11 claim is pending shall not be counted toward” the one-year 12 limitation period. 13 on notice that his habeas petition may be subject to dismissal 14 based on the statute of limitations, he has the burden of 15 demonstrating that the limitations period was sufficiently tolled 16 by providing the pertinent facts, such as dates of filing and 17 denial. 18 (citing Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002), 19 abrogation on other grounds recognized by Moreno v. Harrison, 245 20 Fed.Appx. 606 (9th Cir. 2007)). 28 U.S.C. § 2244(d)(2). Once a petitioner is Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009) 21 In Carey v. Saffold, 536 U.S. 214 (2002), the Court held 22 that an application is “pending” until it “has achieved final 23 resolution through the State's post-conviction procedures.” 24 U.S. 220. 25 until a state petitioner “completes a full round of collateral 26 review.” 27 delay, an application for post conviction relief is pending 28 during the “intervals between a lower court decision and a filing 536 An application does not achieve the requisite finality Id. at 219-20. Accordingly, in the absence of undue 12 1 of a new petition in a higher court” and until the California 2 Supreme Court denies review. 3 F.3d 1045, 1048 (9th Cir. 2003). 4 Id. at 223; Biggs v. Duncan, 339 However, when one full round up the ladder of the state 5 court system is complete and the claims in question are 6 exhausted, a new application in a lower court begins a new round 7 of collateral review. 8 example, the statute of limitations is not tolled from the time a 9 final decision is issued on direct state appeal and the time the Biggs v. Duncan, 339 F.3d at 1048. For 10 first state collateral challenge is filed because there is no 11 case “pending” during that interval. 12 1003, 1006 (9th Cir. 1999). 13 Nino v. Galaza, 183 F.3d Here, after the commencement of the running of the 14 limitation period on September 11, 2009, a total of 125 days ran 15 until Petitioner filed his petition in the state trial court on 16 January 14, 2010. 17 interval of time. 18 There was no case “pending” during that With respect to the pendency of state court petitions, 19 Respondent does not contend that any of the state court petitions 20 were improperly filed; Respondent is “presuming” that the 21 limitation period was tolled while the state court habeas 22 petitions were pending, and thus Respondent appears to concede 23 that the running of the statutory period was tolled from January 24 14, 2010, when Petitioner’s first state court petition was filed, 25 until June 9, 2010, when the California Supreme Court denied the 26 petition before it. 27 period was tolled for 147 days, and it commenced to run again on 28 June 10, 2010, the day after the California Supreme Court’s (Mot., doc. 14, 4.) 13 Thus, the limitation 1 denial. 2 through November 6, 2010, the day before the petition was filed 3 in this Court. 4 interval. 5 The limitation period thus again ran from June 10, 2010, Thus, 150 more days of the period ran during this When statutory tolling is considered, the court concludes 6 that only 275 days of the period ran before Petitioner filed his 7 petition here. 8 the Court will recommend that Respondent’s motion to dismiss the 9 petition on the ground of untimeliness be denied. Thus, the petition was timely filed. Therefore, 10 IV. 11 A district court may entertain a petition for a writ of 12 habeas corpus by a person in custody pursuant to the judgment of 13 a state court only on the ground that the custody is in violation 14 of the Constitution, laws, or treaties of the United States. 28 15 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 16 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 17 16 (2010) (per curiam). 18 Failure to State a Cognizable Due Process Claim The Supreme Court has characterized as reasonable the 19 decision of the Court of Appeals for the Ninth Circuit that 20 California law creates a liberty interest in parole protected by 21 the Fourteenth Amendment Due Process Clause, which in turn 22 requires fair procedures with respect to the liberty interest. 23 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 24 25 However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates 26 27 28 14 1 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).2 2 Swarthout v. Cooke, 131 S.Ct. 859, 862. 3 rejected inmates’ claims that they were denied a liberty interest 4 because there was an absence of “some evidence” to support the 5 decision to deny parole. 6 7 8 9 10 11 12 13 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.) 14 Swarthout, 131 S.Ct. 859, 862. 15 petitioners had received the process that was due as follows: 16 17 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 as to the reasons why parole was denied.... 18 19 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether 20 2 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. 15 1 [the petitioners] received due process. 2 Swarthout, 131 S.Ct. at 862. 3 noted that California’s “some evidence” rule is not a substantive 4 federal requirement, and correct application of California’s 5 “some evidence” standard is not required by the Federal Due 6 Process Clause. 7 The Court in Swarthout expressly Id. at 862-63. Here, in his first and third claims concerning the validity 8 of the BPH’s statement of reasons and the extent to which the 9 decision was supported by some evidence, Petitioner asks this 10 Court to engage in the very type of analysis foreclosed by 11 Swarthout. 12 possibility of constitutional error or that otherwise would 13 entitle Petitioner to habeas relief because California’s “some 14 evidence” requirement is not a substantive federal requirement. 15 Review of the record for “some evidence” to support the denial of 16 parole is not within the scope of this Court’s habeas review 17 under 28 U.S.C. § 2254. 18 Petitioner does not state facts that point to a real Petitioner relies on the statement of one of the parole 19 commissioners near the end of the hearing as evidence of 20 partiality or bias that violated his right to due process of law. 21 Presiding Commissioner Biggers listened to the closing statements 22 made by Petitioner, his counsel, and the prosecutor. 23 109.) 24 Biggers told Petitioner that he had the opportunity to tell the 25 panel why he felt he was suitable for parole. 26 response, Petitioner expressed shame and remorse for his crimes, 27 detailed his efforts to deal with alcoholism, and described his 28 support network and his belief that he would become a productive (Id. at 97- Before Petitioner began his statement, Commissioner 16 (Id. at 105.) In 1 member of society. The following colloquy then occurred: 2 INMATE THERMIDOR: 3 4 PRESIDING COMMISSIONER BIGGERS: I don’t want you talking about the D.A.’s position, I want to know why you feel you’re suitable, sir. Let me - 5 INMATE THERMIDOR: 6 PRESIDING COMMISSIONER BIGGERS: - let me finish. You don’t go by and talk about what the D.A.’s position on. That’s not your role. Your role right now is to tell this Panel why you feel you’re suitable, period. 7 8 9 10 11 And I understand the D.A.’s position – And I - INMATE THERMIDOR: I believe I meet the criteria that is written into Title 15, Division 2, on suitability. 13 PRESIDING COMMISSIONER BIGGERS: Is that all you have to say, sir? I’ve already told you about you don’t fit the criteria. We’ll decide whether you fit the criteria or not, not you. You understand that? 14 INMATE THERMIDOR: 15 16 PRESIDING COMMISSIONER BIGGERS: Okay. Now, do you have anything else to say as to why you feel you’re suitable? 17 INMATE THERMIDOR: 18 PRESIDING COMMISSIONER BIGGERS: We’re going to go into deliberations at this point. 12 Yes, sir. No, sir. 19 (Doc. 6, 108-09.) 20 Petitioner argues that the remark beginning with the 21 sentence, “I’ve already told you about - you don’t fit the 22 criteria,” indicated that the commissioner had already decided 23 Petitioner was not suitable for parole and thus had prejudged the 24 suitability issue so as to deprive Petitioner of an impartial 25 tribunal in violation of his right to due process of law. 26 Considering the commissioner’s words themselves, the remark 27 is reasonably understood as a reference to the fact that the 28 17 1 decision-makers were the BPH, and that Petitioner was being 2 consulted not to provide a response to the prosecutor’s opening 3 statement or to interpret the pertinent regulations concerning 4 parole suitability factors, but rather to give information that 5 Petitioner wanted the BPH to consider that indicated that he was 6 suitable for parole. 7 reference to the context in which the remark was made. 8 commissioner’s remark was preceded by his instructions, which 9 included an emphatic repetition that the statement to be made by 10 Petitioner was regarding why Petitioner felt he was suitable for 11 parole. 12 statement concerning suitability, the commissioner again 13 attempted to obtain more appropriate information from Petitioner 14 concerning his suitability for parole. 15 This understanding is reinforced by (Id. at 105.) The Then, immediately after making the The larger context is also consistent with this 16 interpretation. 17 testimony from Petitioner concerning various factors of parole 18 suitability. 19 up his mind about the ultimate issue of suitability, and 20 contemplated undertaking deliberations before deciding the 21 question of suitability. 22 the course of their deliberations, the commissioners would review 23 all Petitioner’s summaries of books he had read in connection 24 with a human development program. (Doc. 6, 60-61.) Presiding Commissioner Biggers heard extensive The commissioner did not indicate that he had made For example, he explained that during 25 The transcript of the hearing reflects not a negative 26 attitude on the part of Commissioner Biggers toward Petitioner, 27 but rather one of concern. 28 attempted to guide Petitioner to an understanding that his status For example, the commissioner 18 1 as a sex offender might prevent his participation in some 2 employment or residential opportunities, and that his parole 3 plans required more detail than Petitioner had obtained from some 4 of his supporters on the outside. 5 directed Petitioner to the warden as the person to consult in 6 connection with Petitioner’s statement that he wanted to start a 7 program in prison. 8 Petitioner to identify his sponsor and back-up sources if 9 Petitioner felt he was having a problem remaining sober, and he (Id. at 84.) (Id. at 68-73, 78-82.) He The commissioner instructed 10 advised Petitioner to be alert to triggers that might cause a 11 problem. 12 (Id. at 89-90.) The record reflects that some occasional irritation appears 13 to have developed. For example, when the commissioner asked 14 Petitioner if he had only one job offer, Petitioner volunteered 15 that he had marketable skills. 16 that he had not asked about that, he knew what Title 15 said, and 17 he did not need to be reminded that Petitioner had marketable 18 skills. 19 plans. 20 Petitioner for responding to a question before the question was 21 finished. 22 reflects a hearing involving neutral, participatory decision- 23 makers who did not reasonably appear to have prejudged the issue 24 of suitability. 25 Commissioner Biggers responded He then continued the review of Petitioner’s parole (Id. at 86.) The commissioner also mildly rebuked (Id. at 93.) However, the transcript generally A fair trial in a fair tribunal is a basic requirement of 26 due process. 27 California inmates have a due process right to parole 28 consideration by neutral, unbiased decision makers. In re Murchison, 349 U.S. 133, 136 (1955). 19 O’Bremski v. 1 Maass, 915 F.2d 418, 422 (9th Cir. 1990). 2 absence of actual bias and of the probability of unfairness. 3 at 136. 4 of partiality in the absence of actual bias. 5 71 F.3d 732, 741 (9th Cir. 1995). 6 has prejudged, or reasonably appears to have prejudged, an issue, 7 is sufficient. 8 1992). 9 on the part of decision makers. 10 11 Fairness requires an Id. Bias may be actual, or it may consist of the appearance Stivers v. Pierce, A showing that the adjudicator Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. However, there is a presumption of honesty and integrity Withrow v. Larkin, 421 U.S. 35, 46-47 (1975). Further, opinions formed by a judge on the basis of facts 12 introduced or events occurring in the course of the current 13 proceedings do not constitute a basis for a bias or partiality 14 motion unless they display a deep-seated favoritism or antagonism 15 that would make fair judgment impossible. 16 States, 510 U.S. 540, 555 (1994). 17 tempered efforts at courtroom administration, and judicial 18 remarks during the course of a trial that are critical or 19 disapproving of, or even hostile to counsel, the parties, or 20 their cases, ordinarily do not support a bias or partiality 21 challenge. 22 impatience, dissatisfaction, annoyance, and even anger, that are 23 within the bounds of what imperfect men and women... sometimes 24 display” do not establish bias. Id. 25 Id. at 555-56. Liteky v. United Thus, stern and even short- Likewise, “expressions of Here, the record does not reflect any basis for a finding of 26 any deep-seated favoritism or antagonism that would make a fair 27 judgment impossible. 28 commissioner prejudged or reasonably appeared to have prejudged Petitioner has not shown that the 20 1 the case. 2 habeas relief or even pointing to a real possibility of 3 constitutional error. Petitioner has not alleged facts entitling him to 4 To the extent that Petitioner argues that his closing 5 statement was cut off at the hearing, the Court notes that 6 Petitioner made a closing statement to the BPH. 7 09.) 8 that no effort or attempt to make or complete a closing statement 9 to the BPH was cut off or otherwise truncated. (Doc. 6, 105- The previously quoted portion of the transcript reflects Instead, in the 10 course of his closing statement, Petitioner began to remark on 11 the prosecutor’s position. 12 Petitioner that he was not to talk about the prosecutor’s 13 position; rather, Petitioner was to tell the panel why Petitioner 14 believed he was suitable for parole. 15 statement, concluding that he believed he was suitable for 16 parole. 17 suitability, Petitioner responded, “No, sir.” 18 Thus, even if Petitioner had a due process right to complete his 19 opening statement, Petitioner has not shown any interference with 20 his effort to make such a statement. The Presiding Commissioner informed Petitioner continued his When asked if he had anything else to say regarding his (Doc. 6, 108-09.) 21 Further, the minimal standards of due process applicable to 22 the parole suitability hearing do not require that Petitioner be 23 permitted to make any particular type of closing statement. 24 transcript reflects that Petitioner had an opportunity to be 25 heard and received a statement of reasons for the decision. 26 Petitioner thus received all process that was due. 27 28 The Petitioner cites state law concerning a right to due process of law. To the extent that Petitioner’s claim or claims rest on 21 1 state law, they are not cognizable on federal habeas corpus. 2 Federal habeas relief is not available to retry a state issue 3 that does not rise to the level of a federal constitutional 4 violation. 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 6 errors in the application of state law are not cognizable in 7 federal habeas corpus. 8 Cir. 2002). 9 Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged Souch v. Schiavo, 289 F.3d 616, 623 (9th Petitioner’s claim that he did not receive a sufficiently 10 individualized consideration of the factors appropriate under 11 California law is likewise not cognizable. 12 process to which Petitioner is entitled does not include any 13 particular degree of individualized consideration. 14 The minimal due Petitioner argues that Swarthout v. Cooke does not govern 15 his due process claims because his claims concerning his liberty 16 interest in parole are not based on California law, but rather on 17 the United States Constitution. 18 there is no federal right to be conditionally released before the 19 expiration of a valid sentence. 20 1042, 1045 (9th Cir. 2011) (citing Swarthout v. Cooke). 21 Swarthout v. Cooke, the Court did unequivocally determine that 22 the Constitution does not impose on the states a requirement that 23 its decisions to deny parole be supported by a particular quantum 24 of evidence, independent of any requirement imposed by state law. 25 Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011). Petitioner 26 asserts that his claims are based on substantive due process. 27 However, there is no substantive due process right created by 28 California’s parole scheme; if the state affords the procedural However, it is established that Roberts v. Hartley, 640 F.3d 22 In 1 protections required by Greenholtz and Cooke, the Constitution 2 requires no more. 3 Roberts v. Hartley, 640 F.3d at 1046. In summary, Petitioner’s due process claims concerning the 4 parole suitability hearing and the evidence supporting the BPH’s 5 decision must be dismissed because they are not cognizable in 6 this proceeding. 7 A petition for habeas corpus should not be dismissed without 8 leave to amend unless it appears that no tenable claim for relief 9 can be pleaded were such leave granted. 10 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 11 Here, Petitioner did not contend that he lacked an 12 opportunity to review records or to be heard, or that he did not 13 receive a statement of reasons for the BPH’s decision. 14 the allegations in the petition and the undisputed record of the 15 parole hearing reveal that Petitioner attended the parole 16 suitability hearing, made statements to the BPH, and received a 17 statement of reasons for the decision of the BPH from apparently 18 impartial decision-makers. 19 and documentation establish that he had an opportunity to be 20 heard and received a statement of reasons for the decisions in 21 question. 22 state a tenable due process claim. Further, Thus, Petitioner’s own allegations It therefore does not appear that Petitioner could 23 Accordingly, the court will recommend that Respondent's 24 motion to dismiss the petition for failure to state a cognizable 25 due process claim be granted, and the petition be dismissed 26 without leave to amend because Petitioner failed to state a 27 cognizable due process claim. 28 /// 23 1 V. 2 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 3 appealability, an appeal may not be taken to the Court of Appeals 4 from the final order in a habeas proceeding in which the 5 detention complained of arises out of process issued by a state 6 court. 7 U.S. 322, 336 (2003). 8 only if the applicant makes a substantial showing of the denial 9 of a constitutional right. 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 10 petitioner must show that reasonable jurists could debate whether 11 the petition should have been resolved in a different manner or 12 that the issues presented were adequate to deserve encouragement 13 to proceed further. 14 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 15 certificate should issue if the Petitioner shows that jurists of 16 reason would find it debatable whether the petition states a 17 valid claim of the denial of a constitutional right and that 18 jurists of reason would find it debatable whether the district 19 court was correct in any procedural ruling. 20 529 U.S. 473, 483-84 (2000). 21 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 22 the claims in the habeas petition, generally assesses their 23 merits, and determines whether the resolution was debatable among 24 jurists of reason or wrong. 25 applicant to show more than an absence of frivolity or the 26 existence of mere good faith; however, it is not necessary for an 27 applicant to show that the appeal will succeed. 28 Cockrell, 537 U.S. at 338. Id. 24 It is necessary for an Miller-El v. 1 A district court must issue or deny a certificate of 2 appealability when it enters a final order adverse to the 3 applicant. 4 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 5 debate whether the petition should have been resolved in a 6 different manner. 7 of the denial of a constitutional right. 8 9 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 10 VI. 11 Accordingly, it is RECOMMENDED that: 12 1) 13 14 Recommendation Respondent's motion to dismiss the petition as untimely be DENIED; and 2) Respondent's motion to dismiss the petition without 15 leave to amend for failure to state a cognizable due process 16 claim be GRANTED; and 17 3) The petition be DISMISSED without leave to amend; and 18 4) The Court DECLINE to issue a certificate of 19 20 21 appealability; and 5) The Clerk be directed to close the case because an order of dismissal would terminate the action in its entirety. 22 These findings and recommendations are submitted to the 23 United States District Court Judge assigned to the case, pursuant 24 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 25 the Local Rules of Practice for the United States District Court, 26 Eastern District of California. 27 being served with a copy, any party may file written objections 28 with the Court and serve a copy on all parties. Within thirty (30) days after 25 Such a document 1 should be captioned “Objections to Magistrate Judge’s Findings 2 and Recommendations.” 3 and filed within fourteen (14) days (plus three (3) days if 4 served by mail) after service of the objections. 5 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 6 636 (b)(1)(C). 7 objections within the specified time may waive the right to 8 appeal the District Court’s order. 9 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 10 11 IT IS SO ORDERED. 12 Dated: ie14hj July 6, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26
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