-SKO (HC)Danley v. The Attorney General of the State of California, No. 1:2011cv00123 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS And RECOMMENDATIONS To Dismiss The Petition Without Leave To Amend 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 Sheila K. Oberto on 2/4/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 3/10/2011. (Fahrney, E)
Download PDF
<![CDATA[
-SKO (HC)Danley v. The Attorney General of the State of California Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 EDWARD G. DANLEY, 11 Petitioner, 12 v. 13 14 THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00123–LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. The matter has been referred to the 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. Pending before the Court is the petition, 23 which was filed on January 26, 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). 23 Advisory Committee Notes to Habeas Rule Here, Petitioner alleges that he is an inmate of the 24 California Substance Abuse Treatment Facility (CSATF) at 25 Corcoran, California, serving a sentence of seventeen (17) years 26 to life for a conviction of second degree murder sustained in the 27 Los Angeles County Superior Court. 28 challenges the decision of the California Board of Parole 2 (Pet. 1.) Petitioner 1 Hearings (BPH) made on February 5, 2008, finding Petitioner 2 unsuitable for parole. 3 (Pet. 79-88.) It appears from the allegations of the petition and attached 4 documentation that Petitioner voluntarily declined to attend the 5 suitability hearing. 6 the Presiding Commissioner recited that Petitioner had signed an 7 institutional form stating that he did not personally wish to 8 attend his hearing, but he did desire to be represented by 9 counsel. (Pet. 50.) The transcript of the hearing reflects that It has thus been demonstrated that 10 Petitioner received advance notice of the hearing and waived his 11 right to attend in writing. 12 The petition further reflects that John Ibrahim, 13 Petitioner’s attorney, attended the hearing and was given an 14 opportunity to be heard. 15 not want to appear; he had no “ADA issues; he did not object to 16 any panel members; his rights had been met; and the Board’s 17 proceeding on a particular report was permissible. 18 Petitioner affirmatively argued that Petitioner was suitable for 19 parole. 20 had an opportunity to be heard. Counsel confirmed that Petitioner did (Pet. 51-52, 54-55, 66, 74-78.) Counsel for Therefore, Petitioner 21 The attachments to the petition demonstrate that Petitioner 22 received a written statement of the reasons for the decision and 23 the evidence relied upon. 24 copy of the BPH’s decision, which explained the reasons for 25 denial of parole and the evidence relied upon by the board. 26 (Pet. 79-88.) 27 the commitment offense, Petitioner’s history of alcohol-related 28 disciplinary offenses in prison, his anger, an unsupportive Petitioner attached to the petition a The BPH’s decision reflects that the BPH relied on 3 1 psychiatric report, and inadequate parole plans. 2 court concludes that Petitioner received a statement of reasons 3 and identification of the pertinent evidence supporting the 4 decision. 5 (Id.) The Petitioner asks this Court to review whether there was some 6 evidence to support the conclusion that Petitioner was unsuitable 7 for parole because he posed a current threat of danger to the 8 public if released. 9 that the Board 1) proceeded without all existing evidence before (Pet. 10-11, 90-93.) Petitioner complains 10 it; 2) failed to refer to a psychiatric report, and 3) improperly 11 relied on the unchanging factor of the commitment offense. 12 4-5.) 13 habeas petition, the state trial court failed to review the 14 psychiatric report and parole plans, and relied on non-violent 15 criminal history. (Pet. Petitioner also alleges that in denying Petitioner’s (Pet. 5.) 16 II. 17 Because the petition was filed after April 24, 1996, the Failure to Allege a Claim Cognizable on Habeas Corpus 18 effective date of the Antiterrorism and Effective Death Penalty 19 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 20 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 21 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 22 A district court may entertain a petition for a writ of 23 habeas corpus by a person in custody pursuant to the judgment of 24 a state court only on the ground that the custody is in violation 25 of the Constitution, laws, or treaties of the United States. 26 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 27 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 28 16 (2010) (per curiam). 4 Lindh 28 1 The Supreme Court has characterized as reasonable the 2 decision of the Court of Appeals for the Ninth Circuit that 3 California law creates a liberty interest in parole protected by 4 the Fourteenth Amendment Due Process Clause, which in turn 5 requires fair procedures with respect to the liberty interest. 6 Swarthout v. Cooke, 562 U.S. –, – S.Ct. -, 2011 WL 197627, *2 7 (No. 10-133, Jan. 24, 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, 2011 WL 197627, *2. 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 retrospective factual determinations, as in disciplinary proceedings in prison; 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 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.) 2 3 4 Swarthout, 2011 WL 197627, *2. The Court concluded that 5 petitioners had received due process for the following reasons: 6 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.... 7 8 9 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 10 11 Swarthout, 2011 WL 197627, *3. 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 Due Process 15 Clause of the Fourteenth Amendment. 16 The Court in Swarthout expressly Id. at *3. Here, a review of Petitioner’s allegations and arguments 17 reflects that Petitioner’s essential claim is that California’s 18 “some evidence” standard was erroneously applied in his case. 19 is precisely this type of challenge to the application of 20 California’s parole laws that Swarthout determined is not 21 cognizable on federal habeas corpus. 22 *3. 23 substantive federal requirement, Petitioner has not stated facts 24 that point to a real possibility of constitutional error or that 25 otherwise would entitle Petitioner to habeas relief. 26 It Swarthout, 2011 WL 197627, Because California’s “some evidence” requirement is not a To the extent that Petitioner’s claim rests on state law, it 27 is not cognizable on federal habeas corpus. 28 relief is not available to retry a state issue that does not rise 6 Federal habeas 1 to the level of a federal constitutional violation. 2 Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. 3 McGuire, 502 U.S. 62, 67-68 (1991). 4 application of state law are not cognizable in federal habeas 5 corpus. 6 Wilson v. Alleged errors in the Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). Accordingly, Petitioner’s claim or claims concerning the 7 adequacy of the evidence to support the BPH’s decision and the 8 propriety of the BPH’s weighing of the evidence do not state a 9 violation of due process of law or other basis for habeas relief. 10 The Court notes that Petitioner does not allege that the 11 procedures used for determination of his suitability for parole 12 were deficient because of the absence of an opportunity to be 13 heard or a statement of reasons for the ultimate decision 14 reached. 15 recitations and assertions that appear in the transcript of the 16 parole proceedings and other documentation attached to the 17 petition. 18 hearing before the Board, but he was nevertheless represented by 19 counsel who was present at the hearing and argued on Petitioner’s 20 behalf. 21 upon and the Board’s reasons for denying parole. 22 Further, Petitioner does not contradict the factual Petitioner voluntarily declined to attend the parole Petitioner received a statement of the evidence relied It therefore appears from the face of the petition and the 23 attached, uncontradicted documentation that Petitioner was not 24 denied parole without the requisite due process of law. 25 further concluded that no tenable claim for relief could be 26 pleaded were Petitioner granted leave to amend the petition. 27 See, Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 28 /// 7 It is 1 Accordingly, the court recommends that the petition be 2 dismissed without leave to amend for the failure to allege facts 3 that point to a real possibility of constitutional error or that 4 would otherwise entitle Petitioner to habeas relief.2 5 III. 6 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 7 appealability, an appeal may not be taken to the Court of Appeals 8 from the final order in a habeas proceeding in which the 9 detention complained of arises out of process issued by a state 10 court. 11 U.S. 322, 336 (2003). 12 only if the applicant makes a substantial showing of the denial 13 of a constitutional right. 14 petitioner must show that reasonable jurists could debate whether 15 the petition should have been resolved in a different manner or 16 that the issues presented were adequate to deserve encouragement 17 to proceed further. 18 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 19 certificate should issue if the Petitioner shows that jurists of 20 reason would find it debatable whether the petition states a 21 valid claim of the denial of a constitutional right and that 22 jurists of reason would find it debatable whether the district 23 court was correct in any procedural ruling. 24 529 U.S. 473, 483-84 (2000). 25 conducts an overview of the claims in the habeas petition, 26 generally assesses their merits, and determines whether the 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 A Slack v. McDaniel, In determining this issue, a court 27 2 28 Because Petitioner’s claim is not cognizable, the Court has not addressed Petitioner’s failure to name a proper respondent with day-to-day custody and control of Petitioner. 8 1 resolution was debatable among jurists of reason or wrong. 2 It is necessary for an applicant to show more than an absence of 3 frivolity or the existence of mere good faith; however, it is not 4 necessary for an applicant to show that the appeal will succeed. 5 Miller-El v. Cockrell, 537 U.S. at 338. 6 A district court must issue or deny a certificate of 7 appealability when it enters a final order adverse to the 8 applicant. Id. 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 10 debate whether the petition should have been resolved in a 11 different manner. 12 of the denial of a constitutional right. 13 should decline to issue a certificate of appealability. Petitioner has not made a substantial showing 14 IV. 15 Accordingly, it is RECOMMENDED that: 16 1) Accordingly, the Court Recommendation The petition for writ of habeas corpus be DISMISSED 17 without leave to amend because Petitioner has failed to state a 18 claim cognizable on habeas corpus; and 19 20 21 22 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. 23 These findings and recommendations are submitted to the 24 United States District Court Judge assigned to the case, pursuant 25 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 26 the Local Rules of Practice for the United States District Court, 27 Eastern District of California. 28 being served with a copy, any party may file written objections Within thirty (30) days after 9 1 with the Court and serve a copy on all parties. 2 should be captioned “Objections to Magistrate Judge’s Findings 3 and Recommendations.” 4 and filed within fourteen (14) days (plus three (3) days if 5 served by mail) after service of the objections. 6 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 7 636 (b)(1)(C). 8 objections within the specified time may waive the right to 9 appeal the District Court’s order. 10 Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 IT IS SO ORDERED. 13 Dated: ie14hj February 4, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
