-SKO (HC) Martinez v. Hartley, No. 1:2010cv02305 - Document 14 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS re: Respondent's 12 MOTION to DISMISS the Petition; FINDINGS and RECOMMENDATIONS to Dismiss the 1 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 6/13/2011, referred to Judge Ishii. Objections Deadline: Thirty (30) Days. (Marrujo, C)
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-SKO (HC) Martinez v. Hartley Doc. 14 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JESSE MARTINEZ, 9 Petitioner, 10 v. 11 WARDEN J. HARTLEY, 12 Respondent. 13 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—02305-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 12, 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 14 OBJECTIONS DEADLINE: THIRTY (30) DAYS 15 16 Petitioner is a state prisoner proceeding pro se with a 17 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 18 The matter has been referred to the Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending 20 before the Court is the Respondent’s motion to dismiss the 21 petition, which was filed on February 15, 2011. Petitioner filed 22 an opposition to the motion on March 4, 2011. No reply was 23 filed. 24 I. Background 25 Petitioner alleged that he was an inmate of the Avenal State 26 Prison at Avenal, California, serving a sentence of seventeen 27 (17) years to life imposed by the Los Angeles County Superior 28 1 Dockets.Justia.com 1 Court upon Petitioner’s conviction in 1987 of second degree 2 murder with use of a gun. 3 (Pet. 1.) Petitioner challenges the constitutionality of the 4 governor’s rescission on March 17, 2009, of the previous decision 5 of the California Board of Parole Hearings (BPH) granting parole 6 to Petitioner on October 29, 2008. 7 argues that because there was no evidence in the record to 8 support the governor’s conclusion that Petitioner was a current 9 danger if released, Petitioner suffered a violation of his rights (Pet. 18-19.) Petitioner 10 to due process of law pursuant to the Fourteenth Amendment as 11 well as the California Constitution. 12 relies on California statutes, regulations, and case law 13 concerning the determination of suitability for parole and 14 application of the “some evidence” rule at parole hearings. 15 at 22-44.) 16 rehabilitation and other suitability factors supported a grant of 17 parole, and that continued reliance on unchanging factors to deny 18 parole deprived him of due process of law. 19 challenges the decisions of the California appellate courts 20 denying Petitioner habeas relief. (Pet. 6.) Petitioner also (Id. Petitioner argues that the evidence of his Petitioner also (Id. at 7, 39-44.) 21 It is clear from the allegations in the petition that 22 Petitioner attended the hearing before the BPH (pet. 18:16-18), 23 had an opportunity to be heard (id. at 18:17-20; 19:1-5), and 24 received a statement of reasons for the decisions of both the BPH 25 and the governor (id. at 18:21-27; 20:10-27; 21:1-7). 26 II. 27 Because the petition was filed after April 24, 1996, the 28 Failure to State a Cognizable Due Process Claim effective date of the Antiterrorism and Effective Death Penalty 2 1 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 2 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 3 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 4 A district court may entertain a petition for a writ of 5 habeas corpus by a person in custody pursuant to the judgment of 6 a state court only on the ground that the custody is in violation 7 of the Constitution, laws, or treaties of the United States. 28 8 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 9 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 10 11 Lindh 16 (2010) (per curiam). The Supreme Court has characterized as reasonable the 12 decision of the Court of Appeals for the Ninth Circuit that 13 California law creates a liberty interest in parole protected by 14 the Fourteenth Amendment Due Process Clause, which in turn 15 requires fair procedures with respect to the liberty interest. 16 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 17 However, the procedures required for a parole determination 18 are the minimal requirements set forth in Greenholtz v. Inmates 19 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 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. 3 1 Swarthout v. Cooke, 131 S.Ct. 859, 862. 2 rejected inmates’ claims that they were denied a liberty interest 3 because there was an absence of “some evidence” to support the 4 decision to deny parole. 5 6 7 8 9 10 11 12 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.) 13 Swarthout, 131 S.Ct. 859, 862. 14 petitioners had received the process that was due as follows: 15 16 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.... 17 18 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 19 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 20 noted that California’s “some evidence” rule is not a substantive 21 federal requirement, and correct application of California’s 22 “some evidence” standard is not required by the federal Due 23 Process Clause. Id. at 862-63. 24 Petitioner asks this Court to engage in the very type of 25 analysis foreclosed by Swarthout. Petitioner seeks to have this 26 Court review the application of the “some evidence” standard and 27 the sufficiency of the evidence presented at the parole hearing. 28 4 1 Petitioner does not state facts that point to a real possibility 2 of constitutional error or that otherwise would entitle 3 Petitioner to habeas relief because California’s “some evidence” 4 requirement is not a substantive federal requirement. 5 the record for “some evidence” to support the parole authorities’ 6 denial of parole is not within the scope of this Court’s habeas 7 review under 28 U.S.C. § 2254. 8 9 Review of Petitioner cites state law concerning the appropriate application of the “some evidence” requirement. To the extent 10 that Petitioner’s claim or claims rest on state law, they are not 11 cognizable on federal habeas corpus. 12 not available to retry a state issue that does not rise to the 13 level of a federal constitutional violation. 14 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 15 U.S. 62, 67-68 (1991). 16 state law are not cognizable in federal habeas corpus. 17 Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 18 Federal habeas relief is Wilson v. Corcoran, Alleged errors in the application of Souch v. Because Petitioner has not established a violation by the 19 parole authorities of his rights under the Fourteenth Amendment, 20 the decisions of the state courts upholding the governor’s 21 decision could not have resulted in either 1) a decision that was 22 contrary to, or involved an unreasonable application of, clearly 23 established federal law, as determined by the Supreme Court of 24 the United States; or 2) a decision that was based on an 25 unreasonable determination of the facts in light of the evidence 26 presented in the state court proceedings. 27 failed to state facts concerning the state court decisions that 28 would entitle him to relief in this proceeding. 5 Thus, Petitioner has See, 28 U.S.C. 1 § 2254(d). 2 respect to the state court decisions should likewise be 3 dismissed. 4 Therefore, Petitioner’s due process claim with In summary, the Court concludes that Petitioner has failed 5 to state a due process claim cognizable in a proceeding pursuant 6 to 28 U.S.C. § 2254. 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 11 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). Here, Petitioner attended the parole suitability hearing, 12 made statements to the BPH, and received a statement of reasons 13 for the decisions of the BPH and the governor. 14 Petitioner’s own allegations establish that he had an opportunity 15 to be heard and a statement of reasons for the decisions in 16 question. 17 state a tenable due process claim. 18 Thus, It therefore does not appear that Petitioner could Accordingly, it will be recommended that the motion to 19 dismiss the petition be granted, and the petition be dismissed 20 without leave to amend. 21 III. 22 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 23 appealability, an appeal may not be taken to the Court of Appeals 24 from the final order in a habeas proceeding in which the 25 detention complained of arises out of process issued by a state 26 court. 27 U.S. 322, 336 (2003). 28 only if the applicant makes a substantial showing of the denial 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 6 1 of a constitutional right. 2 petitioner must show that reasonable jurists could debate whether 3 the petition should have been resolved in a different manner or 4 that the issues presented were adequate to deserve encouragement 5 to proceed further. 6 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 7 certificate should issue if the Petitioner shows that jurists of 8 reason would find it debatable whether the petition states a 9 valid claim of the denial of a constitutional right and that § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A 10 jurists of reason would find it debatable whether the district 11 court was correct in any procedural ruling. 12 529 U.S. 473, 483-84 (2000). 13 Slack v. McDaniel, In determining this issue, a court conducts an overview of 14 the claims in the habeas petition, generally assesses their 15 merits, and determines whether the resolution was debatable among 16 jurists of reason or wrong. 17 applicant to show more than an absence of frivolity or the 18 existence of mere good faith; however, it is not necessary for an 19 applicant to show that the appeal will succeed. 20 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 21 A district court must issue or deny a certificate of 22 appealability when it enters a final order adverse to the 23 applicant. 24 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 25 debate whether the petition should have been resolved in a 26 different manner. 27 of the denial of a constitutional right. 28 recommended that the Court decline to issue a certificate of Petitioner has not made a substantial showing 7 Therefore, it will be 1 appealability. 2 IV. 3 Accordingly, it is RECOMMENDED that: 4 1) Respondent’s motion to dismiss the petition be GRANTED; 6 2) The petition be DISMISSED without leave to amend; and 7 3) The Court DECLINE to issue a certificate of appeal; and 8 4) The Clerk be DIRECTED to close the case because an order 5 9 Recommendations and of dismissal would terminate the case in its entirety. 10 These findings and recommendations are submitted to the 11 United States District Court Judge assigned to the case, pursuant 12 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 13 the Local Rules of Practice for the United States District Court, 14 Eastern District of California. 15 being served with a copy, any party may file written objections 16 with the Court and serve a copy on all parties. 17 should be captioned “Objections to Magistrate Judge’s Findings 18 and Recommendations.” 19 and filed within fourteen (14) days (plus three (3) days if 20 served by mail) after service of the objections. 21 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 22 636 (b)(1)(C). 23 objections within the specified time may waive the right to 24 appeal the District Court’s order. 25 1153 (9th Cir. 1991). 26 IT IS SO ORDERED. 27 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 June 13, 2011 Martinez v. Ylst, 951 F.2d /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 8
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