(HC) Shives v. Sisto, No. 2:2008cv01548 - Document 25 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/14/11 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(HC) Shives v. Sisto Doc. 25 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 THOMAS SHIVES, 11 12 13 14 15 16 Petitioner, No. CIV S-08-1548 JAM EFB P Respondent. FINDINGS AND RECOMMENDATIONS vs. D. K. SISTO, / Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California 18 Board of Parole Hearings (hereinafter “Board”) to deny him parole at a parole consideration 19 hearing held on November 14, 2006. He claims that the Board’s decision finding him unsuitable 20 for parole violated his right to due process. 21 As discussed below, the United States Supreme Court has held that the only inquiry on 22 federal habeas review of a denial of parole is whether the petitioner has received “fair 23 procedures” for vindication of the liberty interest in parole given by the state. Swarthout v. 24 Cooke, 562 U.S. ___, No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). In the 25 context of a California parole suitability hearing, a petitioner receives adequate process when 26 he/she is allowed an opportunity to be heard and a statement of the reasons why parole was 1 Dockets.Justia.com 1 denied. Id. at **2-3 (federal due process satisfied where petitioners were “allowed to speak at 2 their parole hearings and to contest the evidence against them, were afforded access to their 3 records in advance, and were notified as to the reasons why parole was denied”); see also 4 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 16 (1979). For the reasons that follow, 5 applying this standard here requires that the petition for writ of habeas corpus be denied. 6 I. Procedural Background 7 Petitioner is confined pursuant to a 1986 judgment of conviction entered against him in 8 the Sacramento County Superior Court following his conviction on a charge of kidnapping for 9 robbery, penetration with a foreign object with use of a deadly weapon, oral copulation by force, 10 and possession of controlled substances. Pet. at 1; Answer at 1.1 Pursuant to that conviction, 11 petitioner was sentenced to life in prison with the possibility of parole plus a concurrent thirteen 12 year term. Id. The parole consideration hearing at issue was held on November 14, 2006. Dckt. 22-2, at 13 14 71. Petitioner appeared at and participated in the hearing. Id. at 74-120. Following 15 deliberations held at the conclusion of the hearing, the Board panel announced their decision to 16 deny petitioner parole for one year and the reasons for that decision. Id. at 121-26. Petitioner challenged the Board’s 2006 decision in a petition for writ of habeas corpus 17 18 filed in the Sacramento County Superior Court. Answer, Ex. 1 The Superior Court denied that 19 petition in a reasoned decision. Id., Ex. 2. Petitioner subsequently challenged the Board’s 2006 20 decision in a petition for writ of habeas corpus filed in the California Court of Appeal and a 21 petition for review filed in the California Superior Court. Id., Exs. 3, 5. Those petitions were 22 summarily denied. Id., Exs. 4. 6. 23 //// 24 /// 25 1 26 Page number citations such as these are to the page number reflected on the court’s CM/ECF system and not to page numbers assigned by the parties. 2 1 II. Petitioner’s Claims 2 Petitioner claims that the Board’s 2006 decision finding him unsuitable for parole 3 violated his right to due process because it was “not supported by some relevant, reliable 4 evidence that petitioner currently poses an unreasonable risk of danger to public safety, and was 5 therefore arbitrary and capricious in violation of his state and federal due process rights.” Pet. at 6 5-16, 20-38. 7 III. Analysis 8 9 The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a 10 due process violation must first demonstrate that he was deprived of a liberty or property interest 11 protected by the Due Process Clause and then show that the procedures attendant upon the 12 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 13 490 U.S. 454, 459-60 (1989). 14 A protected liberty interest may arise from either the Due Process Clause of the United 15 States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 16 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 17 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The 18 United States Constitution does not, of its own force, create a protected liberty interest in a 19 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 20 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 21 inherent right of a convicted person to be conditionally released before the expiration of a valid 22 sentence.”); see also Hayward v. Marshall, 603 F.3d 546, 561 (9th Cir. 2010) (en banc). 23 However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a presumption that 24 parole release will be granted’ when or unless certain designated findings are made, and thereby 25 gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12). See also Allen, 482 26 U.S. at 376-78. 3 1 California’s parole scheme2 gives rise to a liberty interest in parole protected by the 2 federal due process clause. Swarthout v. Cooke, 562 U.S. at ___, 2011 WL 197627, at *2. 3 However, the United States Supreme Court has held that correct application of California’s 4 “some evidence” standard is not required by the federal Due Process Clause. Swarthout, 2011 5 WL 197627, at *2. Rather, this court’s review is limited to the narrow question of whether the 6 petitioner has received adequate process for seeking parole. Id. at *3. (“Because the only federal 7 right at issue is procedural, the relevant inquiry is what process [petitioner] received, not whether 8 the state court decided the case correctly.”) Adequate process is provided when the inmate is 9 allowed a meaningful opportunity to be heard and a statement of the reasons why parole was 10 denied. Id. at **2-3 (federal due process satisfied where petitioners were “allowed to speak at 11 their parole hearings and to contest the evidence against them, were afforded access to their 12 records in advance, and were notified as to the reasons why parole was denied”); see also 13 Greenholtz, 442 U.S. at 16. 14 Here, the record reflects that petitioner was present at the 2006 parole hearing, that he 15 participated in the hearing, and that he was provided with the reasons for the Board’s decision to 16 deny parole. Pursuant to Swarthout, this is all that due process requires. Accordingly, 17 petitioner’s application for a writ of habeas corpus should be denied. 18 IV. Conclusion 19 20 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 25 26 2 In California, a prisoner is entitled to release on parole unless there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). 4 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 3 within the specified time may waive the right to appeal the District Court’s order. Turner v. 4 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 In any objections he elects to file, petitioner may address whether a certificate of 6 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 7 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 8 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 9 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 10 appealability to review the denial of a habeas petition challenging an administrative decision 11 such as the denial of parole by the parole board). 12 DATED: February 14, 2011. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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