-SMS (HC)Gonzales v. Hartley, No. 1:2011cv00083 - Document 4 (E.D. Cal. 2011)
Court Description: FINDINGS And RECOMMENDATIONS To Dismiss The Petition For Failure To State A Cognizable Claim (Doc. 1 ) And To Decline To Issue A Certificate Of Appealability, Objections Deadline: Thirty (30) Days, signed by Magistrate Judge Sandra M. Snyder on 1/26/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/28/2011. (Fahrney, E)
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-SMS (HC)Gonzales v. Hartley Doc. 4 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 ALBERTO GONZALES, 11 Petitioner, 12 v. 13 J. HARTLEY, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00083–LJO-SMS-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS 16 17 18 Petitioner is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 The matter has been referred to the Magistrate Judge pursuant to 21 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending 22 before the Court is the petition, which was filed on January 21, 23 2011. 24 I. Screening the Petition 25 Rule 4 of the Rules Governing § 2254 Cases in the United 26 States District Courts (Habeas Rules) requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. 28 1 Dockets.Justia.com 1 The Court must summarily dismiss a petition "[i]f it plainly 2 appears from the petition and any attached exhibits that the 3 petitioner is not entitled to relief in the district court....” 4 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 5 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 6 1990). 7 grounds of relief available to the Petitioner; 2) state the facts 8 supporting each ground; and 3) state the relief requested. 9 Notice pleading is not sufficient; rather, the petition must Habeas Rule 2(c) requires that a petition 1) specify all 10 state facts that point to a real possibility of constitutional 11 error. 12 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 13 Allison, 431 U.S. 63, 75 n.7 (1977)). 14 that are vague, conclusory, or palpably incredible are subject to 15 summary dismissal. 16 Cir. 1990). 17 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 18 corpus either on its own motion under Habeas Rule 4, pursuant to 19 the respondent's motion to dismiss, or after an answer to the 20 petition has been filed. 21 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 22 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 23 Here, Petitioner alleges that he is an inmate of Avenal 24 State Prison who is serving a sentence of seventeen years to life 25 imposed in the Los Angeles County Superior Court after 26 Petitioner’s conviction of murder and attempted murder. 27 9.) 28 California made on May 3, 2010, to rescind the decision of the (Pet. Petitioner challenges the decision of the governor of 2 1 Board of Parole Hearings that had been made on December 8, 2009, 2 releasing Petitioner on parole. 3 It appears from Petitioner’s allegations that he attended 4 the parole hearing before the Board on December 8, 2009 (Pet. 5 14); he spoke to the Board about the commitment offense and a 6 doctor’s report (Pet. 14-15); and he was represented by counsel, 7 who also attended the hearing, examined Petitioner, and argued on 8 Petitioner’s behalf (Pet. 15). 9 governor summarized his decision to rescind the decision to Petitioner alleges that the 10 release Petitioner, and it may be inferred that Petitioner 11 received the summary because Petitioner quoted from it in the 12 petition. 13 his decision was based on the gravity of the crimes, Petitioner’s 14 failure to accept full responsibility for his murderous actions 15 and lack of insight into his role in the offense, and the 16 unreasonable risk of recidivism and violence that resulted 17 therefrom. 18 (Pet. 16-17.) The governor’s summary indicates that (Pet. 17.) Petitioner asks this Court to review whether there was some 19 evidence to support the conclusion that Petitioner was unsuitable 20 for parole because he posed a current threat of danger to the 21 public if released. 22 claims: 1) he did not receive an individualized consideration of 23 the criteria for release on parole as set forth in state statutes 24 and regulations, and thus he was denied due process of law under 25 the California constitution as well as the Fourteenth Amendment 26 (Pet. 2, 18-21); 2) there is no evidence to support the 27 governor’s conclusion that Petitioner was a current danger if 28 released, and thus Petitioner was denied due process of law under (Pet. 10, 18.) 3 Petitioner raises three 1 the Fourteenth Amendment as well as the California constitution 2 (Pet. 22-32); and 3) the decision of the state superior court 3 upholding the governor’s decision was objectively unreasonable 4 because it ignored facts that were contrary to the court’s 5 decision and thus proceeded in a manner inconsistent with 6 California case law (Pet. 32-34). 7 II. 8 Because the petition was filed after April 24, 1996, the 9 Failure to Allege a Claim Cognizable on Habeas Corpus effective date of the Antiterrorism and Effective Death Penalty 10 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 11 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 12 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 13 A district court may entertain a petition for a writ of 14 habeas corpus by a person in custody pursuant to the judgment of 15 a state court only on the ground that the custody is in violation 16 of the Constitution, laws, or treaties of the United States. 28 17 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 18 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 19 16 (2010) (per curiam). 20 Lindh The Supreme Court has characterized as reasonable the 21 decision of the Court of Appeals for the Ninth Circuit that 22 California law creates a liberty interest in parole protected by 23 the Fourteenth Amendment Due Process Clause, which in turn 24 requires fair procedures with respect to the liberty interest. 25 Swarthout v. Cooke, 562 U.S. –, – S.Ct. -, 2011 WL 197627, *2 26 (No. 10-133, Jan. 24, 2011). 27 28 However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates 4 1 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 2 Swarthout v. Cooke, 2011 WL 197627, *2. 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, 2011 WL 197627, *2. 15 petitioners had received the process that was due: 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 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 [the petitioners] received due process. 2 Swarthout, 2011 WL 197627, *3. 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 *3. Here, in his first claim, Petitioner seeks an individualized 8 consideration of the criteria for release on parole as set forth 9 in state statutes and regulations. However, due process of law 10 requires only that Petitioner have an opportunity to be heard; it 11 does not require any specific degree of individualized 12 consideration. 13 To the extent that this claim rests on state law, it is not 14 cognizable on federal habeas corpus. 15 not available to retry a state issue that does not rise to the 16 level of a federal constitutional violation. 17 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 18 U.S. 62, 67-68 (1991). 19 state law are not cognizable in federal habeas corpus. 20 Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 21 22 23 Federal habeas relief is Wilson v. Corcoran, Alleged errors in the application of Souch v. Accordingly, Petitioner’s first claim does not state a violation of due process of law or other basis for habeas relief. Petitioner argues in his second claim that the absence of 24 some evidence to support the governor’s conclusion that 25 Petitioner was a current danger violated his right to due process 26 of law. 27 real possibility of constitutional error or that otherwise would 28 entitle Petitioner to habeas relief because California’s “some However, Petitioner does not state facts that point to a 6 1 evidence” requirement is not a substantive federal requirement. 2 Swarthout, 2011 WL 197627, *3. 3 evidence” to support the denial of parole is not within the scope 4 of this Court’s habeas review under 28 U.S.C. § 2254. 5 Review of the record for “some In Petitioner’s third claim, he alleges that the decision of 6 the state superior court upholding the governor’s decision was 7 objectively unreasonable because it was contrary to California 8 case law. 9 it is predicated on state law. 10 11 This claim is not cognizable in habeas corpus because To the extent that Petitioner’s claim rests on state law, Petitioner’s claim must be dismissed. To the extent that Petitioner attempts to argue a violation 12 of the Federal Constitution’s Due Process Clause, the preceding 13 analysis applies, and the claim is foreclosed. 14 The Court notes that Petitioner does not allege that the 15 procedures used in determining his suitability for parole were 16 deficient because of the absence of either an opportunity to be 17 heard or a statement of reasons for the ultimate decision 18 reached. 19 attended the parole hearing before the Board, made a statement to 20 the Board, and was represented by counsel who was present at the 21 hearing, examined Petitioner, and argued on Petitioner’s behalf. 22 Petitioner received a statement of the Board’s reasons for 23 recommending parole. 24 materials and decision, Petitioner received the governor’s 25 statement of reasons. 26 the petition that Petitioner was not denied parole without the 27 requisite due process of law. 28 However, the Court further notes that Petitioner Further, after the governor reviewed the (Pet. 15). It appears from the face of Accordingly, it will be recommended that the petition be 7 1 dismissed for the failure to allege facts that point to a real 2 possibility of constitutional error or that would otherwise 3 entitle Petitioner to habeas relief. 4 III. 5 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 6 appealability, an appeal may not be taken to the Court of Appeals 7 from the final order in a habeas proceeding in which the 8 detention complained of arises out of process issued by a state 9 court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 10 U.S. 322, 336 (2003). 11 only if the applicant makes a substantial showing of the denial 12 of a constitutional right. 13 petitioner must show that reasonable jurists could debate whether 14 the petition should have been resolved in a different manner or 15 that the issues presented were adequate to deserve encouragement 16 to proceed further. 17 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 18 certificate should issue if the Petitioner shows that jurists of 19 reason would find it debatable whether the petition states a 20 valid claim of the denial of a constitutional right and that 21 jurists of reason would find it debatable whether the district 22 court was correct in any procedural ruling. 23 529 U.S. 473, 483-84 (2000). 24 conducts an overview of the claims in the habeas petition, 25 generally assesses their merits, and determines whether the 26 resolution was debatable among jurists of reason or wrong. 27 It is necessary for an applicant to show more than an absence of 28 frivolity or the existence of mere good faith; however, it is not A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court 8 Id. 1 necessary for an applicant to show that the appeal will succeed. 2 Miller-El v. Cockrell, 537 U.S. at 338. 3 A district court must issue or deny a certificate of 4 appealability when it enters a final order adverse to the 5 applicant. 6 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 7 debate whether the petition should have been resolved in a 8 different manner. 9 of the denial of a constitutional right. 10 Petitioner has not made a substantial showing Accordingly, the Court should decline to issue a certificate of appealability. 11 IV. 12 Accordingly, it is RECOMMENDED that: 13 1) Recommendation The petition for writ of habeas corpus be DISMISSED 14 because Petitioner has failed to state a claim cognizable on 15 habeas corpus; and 16 17 18 19 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close the action because this order terminates the proceeding in its entirety. 20 These findings and recommendations are submitted to the 21 United States District Court Judge assigned to the case, pursuant 22 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 23 the Local Rules of Practice for the United States District Court, 24 Eastern District of California. 25 being served with a copy, any party may file written objections 26 with the Court and serve a copy on all parties. 27 should be captioned “Objections to Magistrate Judge’s Findings 28 and Recommendations.” Within thirty (30) days after Such a document Replies to the objections shall be served 9 1 and filed within fourteen (14) days (plus three (3) days if 2 served by mail) after service of the objections. 3 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 4 636 (b)(1)(C). 5 objections within the specified time may waive the right to 6 appeal the District Court’s order. 7 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 8 9 10 IT IS SO ORDERED. Dated: icido3 January 26, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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