-SKO (HC)Desilva v. Allison, No. 1:2011cv00263 - Document 6 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Failure to State a Claim Cognizable Pursuant to 28 U.S.C. 2254; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 4/6/2011. Referred to Judge O'Neill. (Gonzalez, R)
Download PDF
-SKO (HC)Desilva v. Allison Doc. 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KENNETH P. DESILVA, 11 Petitioner, 12 13 14 v. K. ALLISON, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 17 1:11-cv—00263-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM COGNIZABLE PURSUANT TO 28 U.S.C. § 2254 (DOC. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 23 Rules 302 and 304. 24 which was filed on February 17, 2011. The matter has been referred to the Pending before the Court is the petition, 25 I. 26 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 27 States District Courts (Habeas Rules) requires the Court to make 28 a preliminary review of each petition for writ of habeas corpus. 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 Petitioner is an inmate of the California Substance Abuse 24 Treatment Facility (CSATF) at Corcoran, California, serving a 25 sentence of fifteen years to life imposed by the Monterey County 26 Superior Court in 1993 pursuant to Petitioner’s conviction of 27 second degree murder with the use of a firearm. 28 Petitioner challenges the decision of California’s Board of 2 (Pet. 1.) 1 Parole Hearings (BPH) made after a hearing held on October 26, 2 2009, in which Petitioner was found unsuitable for parole for a 3 period of three years. 4 the following claims: 1) use of “Marcy’s Law” to impose a three- 5 year period of denial constitutes an ex post facto law because it 6 increased Petitioner’s maximum release date by over two and one- 7 half years; 2) denial of parole for three years constituted 8 double jeopardy because Petitioner was in effect re-sentenced 9 with a more distant release date than had been calculated (Pet 6-7, 35, 106-23.) Petitioner raises 10 earlier; and 3) the denial of parole was not supported by any 11 evidence indicating that Petitioner presented or presents an 12 unreasonable risk of danger to the public safety in view of 13 Petitioner’s record, rehabilitation, vocational attributes, and 14 low potential for future violence. (Pet. 6-8.) 15 I. 16 Because the petition was filed after April 24, 1996, the Failure to State a Cognizable Ex Post Facto Claim 17 effective date of the Antiterrorism and Effective Death Penalty 18 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 19 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 20 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 21 A district court may entertain a petition for a writ of 22 habeas corpus by a person in custody pursuant to the judgment of 23 a state court only on the ground that the custody is in violation 24 of the Constitution, laws, or treaties of the United States. 28 25 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 26 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 27 16 (2010) (per curiam). 28 Petitioner alleges that his parole was denied for three Lindh 3 1 years based on the application of “Marcy’s Law” (pet. 7). 2 Court understands this to be a reference to California’s 3 Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s 4 Law,” which on November 4, 2008, effected an amendment of Cal. 5 Pen. Code § 3041.5(b)(3) that resulted in a lengthening of the 6 period between parole suitability hearings. 7 The Before Proposition 9 was enacted, Cal. Pen. Code 8 § 3041.5(b)(2) provided that the suitability hearings would 9 generally occur every year, but could occur every two years in 10 cases in which the board found that it was not reasonable to 11 expect parole would be granted in a year and stated the bases for 12 the finding, or every five years if the prisoner had been 13 convicted of murder and the board found that it was not 14 reasonable to expect parole to be granted during the following 15 years and stated the bases for the finding in writing. 16 Code § 3041.5(b)(2) (2008); Gilman v. Schwarzenegger, - F.3d -, 17 No. 10-15471, 2011 WL 198435, at *2 (9th Cir. Jan. 24, 2011). 18 Proposition 9 amended Cal. Pen. Code § 3041.5(b)(3) to provide 19 that future parole suitability hearings should be scheduled in 20 fifteen years, ten years, or three, five, or seven-year intervals 21 years unless the board finds by clear and convincing evidence 22 that statutory criteria relevant to release and the safety of the 23 victim and public did not require the greater period of continued 24 imprisonment. 25 Schwarzenegger, 2011 WL 198435 at *2. 26 Cal. Pen. Cal. Pen. Code § 3041.5(b)(3) (2010); Gilman v. In addition, Proposition 9 amended the law concerning parole 27 deferral periods by authorizing the Board to advance a hearing 28 date in its discretion either sua sponte or at the request of the 4 1 Petitioner. 2 198435, at *6. 3 § 3041.5(b), (d); Gilman v. Schwarzenegger, 2011 WL The Constitution provides, “No State shall... pass any... ex 4 post facto Law.” 5 Clause prohibits any law which: 1) makes an act done before the 6 passing of the law, which was innocent when done, criminal; 2) 7 aggravates a crime and makes it greater than it was when it was 8 committed; 3) changes the punishment and inflicts a greater 9 punishment for the crime than when it was committed; or 4) alters U.S. Const. art I, § 10. The Ex Post Facto 10 the legal rules of evidence and requires less or different 11 testimony to convict the defendant than was required at the time 12 the crime was committed. 13 (2000). 14 defendant violates the Ex Post Facto Clause if the new 15 regulations create a “sufficient risk” of increasing the 16 punishment for the defendant’s crimes. 17 F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of 18 Corrections v. Morales, 514 U.S. 499, 509 (1995)). 19 or statute does not by its own terms show a significant risk, the 20 petitioner must demonstrate, by evidence drawn from the rule's 21 practical implementation by the agency charged with exercising 22 discretion, that its retroactive application will result in a 23 longer period of incarceration than under the earlier rule. 24 Garner v. Jones, 529 U.S. 244, 250, 255 (2000). 25 Carmell v. Texas, 529 U.S. 513, 522 Application of a state regulation retroactively to a Himes v. Thompson, 336 When the rule Previous amendments to Cal. Pen. Code § 3041.5, which 26 initiated longer periods of time between parole suitability 27 hearings, have been upheld against challenges that they violated 28 the Ex Post Facto Clause. See, e.g., California Department of 5 1 Corrections v. Morales, 514 U.S. 499, 509 (1995) (where the great 2 majority of prisoners were found unsuitable, a 1982 increase of 3 the maximum period for deferring hearings to five years for 4 offenders who had committed multiple homicides only altered the 5 method of setting a parole release date and did not result in a 6 sufficient risk of increasing the punishment or measure of 7 punishment for the crime in the absence of modification of 8 punishment or of the standards for determining either the initial 9 date for parole eligibility or an inmate’s suitability for 10 parole); 11 1989) (finding no ex post facto violation in applying amended 12 Cal. Pen. Code § 3041.5(b)(2)(A), permitting delay of suitability 13 hearings for several years, to prisoners sentenced to a life term 14 before California’s Determinate Sentencing Law was implemented in 15 1977 who otherwise would have been entitled to periodic review of 16 suitability). Watson v. Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 17 Similarly, it has been held that a state law permitting the 18 extension of intervals between parole consideration hearings for 19 all prisoners serving life sentences from three to eight years 20 did not violate the Ex Post Facto Clause where expedited parole 21 review was available upon a change of circumstances or receipt of 22 new information warranting an earlier review, and where there was 23 no showing of increased punishment. 24 there was no significant risk of extending a prisoner’s 25 incarceration. 26 Court recognized that state parole authorities retain broad 27 discretion concerning release and must have flexibility in 28 formulating parole procedures and addressing problems associated Under such circumstances, Garner v. Jones, 529 U.S. 244, 249 (2000). 6 The 1 with confinement and release. 2 252-53. 3 parole is the need to permit changes in the manner in which the 4 discretion is “informed and then exercised.” 5 529 U.S. at 253. 6 depended in part on the parole authority’s determination of the 7 likelihood of a future grant of parole. 8 that parole resources were put to better use, which in turn 9 increased the likelihood of release. Garner v. Jones, 529 U.S. 244, Inherent in the discretionary nature of a grant of Garner v. Jones, Further, the timing of the hearings in Garner Thus, the result was Id. at 254. In Garner, the 10 matter was remanded for further proceedings to determine the risk 11 of increased punishment. 12 In Gilman v. Schwarzenegger, - F.3d -, No. 10-15471, 2011 WL 13 198435, at *2 (9th Cir. Jan. 24, 2011), the Ninth Circuit 14 reversed a grant of injunctive relief to plaintiffs in a class 15 action seeking to prevent the BPH from enforcing Proposition 9's 16 amendments that defer parole consideration. 17 that the plaintiffs were not likely to succeed on their claim on 18 the merits. 19 concerning whether or not more frequent parole hearings would 20 result in more frequent grants of parole, as distinct from 21 denials. 22 9 were noted to be more extensive than those before the Court in 23 Morales and Garner, advanced hearings, which would remove any 24 possibility of harm, were available upon a change in 25 circumstances or new information. 26 record facts from which it might be inferred that Proposition 9 27 created a significant risk of prolonging the plaintiffs’ 28 incarceration, the plaintiffs had not established a likelihood of Id. at *1, *3-*8. Id. at *3. The court concluded In Gilman, there was no evidence Although the changes wrought by Proposition 7 Id. at *6. In the absence of 1 2 success on the merits on the ex post facto claim. Id. at *8. Here, Petitioner has not alleged facts warranting a 3 different conclusion. 4 an unreasonable risk of danger if released, and that denial was 5 for three years, the minimum they could give under Proposition 9. 6 To be found suitable, however, Petitioner would have to stop 7 minimizing his conduct in committing the commitment offense, gain 8 understanding and insight into the factors that caused his 9 conduct, overcome uncontrolled hostility and paranoia, improve The board concluded that Petitioner posed 10 his coping skills, obtain a GED, engage in further self-help and 11 therapy, gain understanding of why he used alcohol, and make a 12 full relapse-prevention plan. 13 (Pet. 106-20.) The Court may take judicial notice of court records. Fed. 14 R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 15 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 16 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). 17 The Court takes judicial notice of the docket and specified 18 orders in the class action Gilman v. Fisher, 2:05-cv-00830-LKK- 19 GGH, which is pending in this Court, including the order granting 20 motion for class certification filed on March 4, 2009. (Doc. 182, 21 9:7-15.) 22 California state prisoners who 1) have been sentenced to a term 23 that includes life, 2) are serving sentences that include the 24 possibility of parole, 3) are eligible for parole, and 4) have 25 been denied parole on one or more occasions. 26 reflects that the Ninth Circuit affirmed the order certifying the 27 class. 28 of the order of March 4, 2009, in which the court described the This indicates that the Gilman class is made up of (Docs. 257, 258.) The docket further The Court also takes judicial notice 8 1 case as including challenges to Proposition 9's amendments to 2 Cal. Pen. Code § 3041.5 based on the Ex Post Facto Clause, and a 3 request for injunctive and declaratory relief against 4 implementation of the changes. 5 (Doc. 182, 5-6.) The relief Petitioner seeks in this petition concerns in 6 part the future scheduling of Petitioner’s next suitability 7 hearing and the invalidation of state procedures used to deny 8 parole suitability, matters removed from the fact or duration of 9 confinement. Such types of claims have been held to be 10 cognizable under 42 U.S.C. § 1983 as claims concerning conditions 11 of confinement. 12 Thus, they may fall outside the core of habeas corpus relief. 13 See, Preiser v. Rodriguez, 411 U.S. 475, 485-86 (1973); Nelson v. 14 Campbell, 541 U.S. 637, 643 (2004); Muhammad v. Close, 540 U.S. 15 749, 750 (2004). 16 Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Further, the relief Petitioner requests overlaps with the 17 relief requested in the Gilman class action. 18 that a plaintiff who is a member of a class action for equitable 19 relief from prison conditions may not maintain an individual suit 20 for equitable relief concerning the same subject matter. 21 Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979). 22 because it is contrary to the efficient and orderly 23 administration of justice for a court to proceed with an action 24 that would possibly conflict with or interfere with the 25 determination of relief in another pending action, which is 26 proceeding and in which the class has been certified. 27 28 It is established This is Here, Petitioner’s own allegations reflect that he qualifies as a member of the class in Gilman. 9 The court in Gilman has 1 jurisdiction over same subject matter and may grant the same 2 relief. 3 disposition of its cases with economy of time and effort for both 4 the court and the parties. 5 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 6 (9th Cir. 1992). 7 this Court concludes that dismissal of Petitioner’s ex post facto 8 claim in this action is appropriate and necessary to avoid 9 interference with the orderly administration of justice. A court has inherent power to control its docket and the Landis v. North American Co., 299 In the exercise of its inherent discretion, Cf., 10 Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland, 11 2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011). 12 A petition for habeas corpus should not be dismissed without 13 leave to amend unless it appears that no tenable claim for relief 14 can be pleaded were such leave granted. 15 F.2d 13, 14 (9th Cir. 1971). 16 petition and the pendency of the Gilman class action, amendment 17 of the petition with respect to the ex post facto claim would be 18 futile and unproductive. 19 20 Jarvis v. Nelson, 440 In view of the allegations of the Accordingly, it will be recommended that the ex post facto claim be dismissed without leave to amend. 21 III. 22 The Double Jeopardy Clause of the Fifth Amendment protects Failure to State a Cognizable Double Jeopardy Claim 23 against not only a second prosecution for the same offense after 24 acquittal or conviction, but also multiple punishments for the 25 same offense. 26 U.S. 389, 395-96 (1995). 27 that a “sentence be given a degree of finality that prevents its 28 later increase.” U.S. Const. amend V; Witte v. United States, 515 However, the clause does not require United States v. DiFrancesco, 449 U.S. 117, 137 10 1 (1980). 2 Id. 3 revocation of probation or parole with imposition of 4 imprisonment. 5 An acquittal and a sentence are critically different. Thus, there is no double jeopardy protection against Id. at 137. Likewise, the denial of parole is neither punishment nor 6 imposition or increase of a sentence for double jeopardy 7 purposes; rather, it is an administrative decision to withhold 8 early release. 9 1992); Alessi v. Quinlan, 711 F.2d 497, 501 (2d Cir. 1983); Roach Mahn v. Gunter, 978 F.2d 599, 602 n.7 (10th Cir. 10 v. Board of Pardons and Paroles, State of Arkansas, 503 F.2d 11 1367, 1368 (8th Cir. 1974); United States ex rel. Jacobs v. Barc, 12 141 F.2d 480, 483 (6th Cir. 1944). 13 Double Jeopardy Clause does not provide the defendant with the 14 right to know at any specific point in time what the precise 15 limit of his punishment will eventually turn out to be. 16 States v. DiFrancesco, 499 U.S. at 137. 17 It is established that the United Pursuant to California’s sentencing scheme, when a prisoner 18 receives an indeterminate sentence, such as fifteen years to 19 life, the indeterminate sentence is in legal effect a sentence 20 for the maximum term, subject only to the power of the parole 21 authority to set a lesser term; parole is an entirely 22 discretionary matter. 23 561-62 (9th Cir. 2010), overruled on other grounds in Swarthout 24 v. Cooke, 562 U.S. –, 131 S.Ct. 859 (2011). 25 are parts of the original sentence that must be anticipated by a 26 prisoner. 27 1995). 28 Hayward v. Marshall, 603 F.3d 546, 558, Probation and parole United States v. Brown, 59 F.3d 102, 104-05 (9th Cir. Here, Petitioner alleges generally that the denial of his 11 1 parole violated his rights against double jeopardy. 2 However, Petitioner alleges that he was sentenced to a term of 3 fifteen (15) years to life. 4 Jeopardy Clause was not implicated in the denial of Petitioner’s 5 parole. (Pet. 6-7.) (Pet. 6.) Thus, the Double 6 Because it is clear that Petitioner was sentenced to a term 7 that included imprisonment for life, Petitioner could not allege 8 facts to constitute a cognizable claim that the denial of parole 9 violated the Double Jeopardy Clause of the Fifth Amendment, as 10 made binding on the states through the Fourteenth Amendment. 11 Accordingly, this claim should be dismissed without leave to 12 amend. 13 IV. 14 Petitioner alleges that the board’s denial of his parole was Failure to State a Cognizable Due Process Claim 15 a denial of his Fourteenth Amendment right to due process of law 16 because numerous suitability factors supported his release, the 17 board failed to articulate evidence to support a rational 18 conclusion that Petitioner posed an unreasonable risk of danger 19 to the public, and the decision was not supported by the 20 requisite modicum of evidence of unsuitability. 21 (Pet. 6-8.) Reference to the transcript of the parole suitability 22 hearing held on October 26, 2009, reflects that Petitioner was 23 present throughout the hearing and made a statement to the board. 24 (Pet. 35-99, 103-04.) 25 present and made a statement. 26 counsel had an opportunity to review Petitioner’s central file 27 and previous transcripts before the hearing. 28 it made its decision, the board explained to Petitioner that it Further, Petitioner’s attorney was also (Pet. 38, 99-103.) 12 Petitioner and (Pet. 42.) After 1 had denied parole for three years because Petitioner posed an 2 unreasonable risk of danger if released based on the commitment 3 offense, Petitioner’s minimization of his responsibility and role 4 in the offense, his limited insight, and his incomplete course of 5 self-help and therapy. (Pet. 106-23.) 6 The Supreme Court has characterized as reasonable the 7 decision of the Court of Appeals for the Ninth Circuit that 8 California law creates a liberty interest in parole protected by 9 the Fourteenth Amendment Due Process Clause, which in turn 10 requires fair procedures with respect to the liberty interest. 11 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 12 However, the procedures required for a parole determination are 13 the minimal requirements set forth in Greenholtz v. Inmates of 14 Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 15 Swarthout v. Cooke, 131 S.Ct. 859, 862. 16 rejected inmates’ claims that they were denied a liberty interest 17 because there was an absence of “some evidence” to support the 18 decision to deny parole. 19 In Swarthout, the Court The Court stated: There is no right under the Federal Constitution 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. 13 1 2 3 4 5 6 7 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.) 8 Swarthout, 131 S.Ct. 859, 862. The Court concluded that the 9 petitioners had received the process that was due: 10 11 12 13 14 They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.... That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 15 Swarthout, 131 S.Ct. at 862. 16 noted that California’s “some evidence” rule is not a substantive 17 federal requirement, and correct application of California’s 18 “some evidence” standard is not required by the federal Due 19 Process Clause. 20 The Court in Swarthout expressly Id. at 862-63. Petitioner asks this Court to engage in the very type of 21 analysis foreclosed by Swarthout. 22 facts that point to a real possibility of constitutional error or 23 that otherwise would entitle Petitioner to habeas relief because 24 California’s “some evidence” requirement is not a substantive 25 federal requirement. 26 support the denial of parole is not within the scope of this 27 Court’s habeas review under 28 U.S.C. § 2254. 28 Petitioner’s more specific points concerning the suitability Petitioner does not state Review of the record for “some evidence” to 14 Consideration of 1 factors in his case would amount to undertaking the very analysis 2 disapproved by the Court in Swarthout. 3 Petitioner cites state law concerning the appropriate weight 4 to be given to evidence. 5 rests on state law, it is not cognizable on federal habeas 6 corpus. 7 issue that does not rise to the level of a federal constitutional 8 violation. 9 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To the extent that Petitioner’s claim Federal habeas relief is not available to retry a state Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged 10 errors in the application of state law are not cognizable in 11 federal habeas corpus. 12 Cir. 2002). 13 Souch v. Schiavo, 289 F.3d 616, 623 (9th It appears from the attachments to Petitioner’s petition 14 that Petitioner had an opportunity to review in advance and 15 contest the evidence against him and to speak at the hearing. 16 Further, Petitioner received a statement of the reasons for the 17 decision. 18 letters that were written on behalf of Petitioner be read at the 19 hearing. 20 failure to read his letters at the hearing do not negate the 21 clear documentary showing that Petitioner received all process 22 that was due under the circumstances. 23 Federal due process of law does not require that many Thus, Petitioner’s allegations concerning the board’s The Court, therefore, concludes that Petitioner cannot state 24 facts constituting a cognizable due process claim in connection 25 with the denial of his parole. 26 recommend that Petitioner’s due process claim be dismissed 27 without leave to amend. 28 /// Accordingly, the Court will 15 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 conducts an overview of the claims in the habeas petition, 22 generally assesses their merits, and determines whether the 23 resolution was debatable among jurists of reason or wrong. 24 It is necessary for an applicant to show more than an absence of 25 frivolity or the existence of mere good faith; however, it is not 26 necessary for an applicant to show that the appeal will succeed. 27 Miller-El v. Cockrell, 537 U.S. at 338. 28 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court A district court must issue or deny a certificate of 16 Id. 1 appealability when it enters a final order adverse to the 2 applicant. 3 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 4 debate whether the petition should have been resolved in a 5 different manner. 6 of the denial of a constitutional right. 7 should decline to issue a certificate of appealability. Petitioner has not made a substantial showing 8 VI. 9 Accordingly, the Court Accordingly, it is RECOMMENDED that: 10 1) Recommendations The petition for writ of habeas corpus be DISMISSED 11 without leave to amend for failure to state a claim cognizable 12 pursuant to 28 U.S.C. § 2254; and 13 14 15 16 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close the action because the dismissal will terminate the action. 17 These findings and recommendations are submitted to the 18 United States District Court Judge assigned to the case, pursuant 19 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 20 the Local Rules of Practice for the United States District Court, 21 Eastern District of California. 22 being served with a copy, any party may file written objections 23 with the Court and serve a copy on all parties. 24 should be captioned “Objections to Magistrate Judge’s Findings 25 and Recommendations.” 26 and filed within fourteen (14) days (plus three (3) days if 27 served by mail) after service of the objections. 28 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § Within thirty (30) days after Such a document Replies to the objections shall be served 17 The Court will 1 636 (b)(1)(C). 2 objections within the specified time may waive the right to 3 appeal the District Court’s order. 4 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 5 6 IT IS SO ORDERED. 7 Dated: ie14hj April 6, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18