(HC) Fox v. Sisto, No. 2:2008cv01813 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/8/2011 RECOMMENDING that ptnr's 1 application for writ of habeas corpus be denied. Referred to Judge Frank C. Damrell, Jr.; Objections due w/in 14 days. (Yin, K)
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(HC) Fox v. Sisto Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JERMAINE FOX, 11 12 13 14 15 16 Petitioner, No. CIV S-08-1813 FCD EFB P vs. D. K. SISTO, Warden, Respondent. FINDINGS AND RECOMMENDATIONS / 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. He challenges the decision of the California Board 18 of Parole Hearings (hereinafter “Board”) to deny him parole at a parole consideration hearing 19 held on July 19, 2007. He claims that the Board’s 2007 decision finding him unsuitable for 20 parole violated his federal 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. ___ (2011), No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011). In the context 25 of a California parole suitability hearing, a petitioner receives adequate process when he/she is 26 allowed an opportunity to be heard and a statement of the reasons why parole was denied. Id. at 1 Dockets.Justia.com 1 **2-3 (federal due process satisfied where petitioners were “allowed to speak at their parole 2 hearings and to contest the evidence against them, were afforded access to their records in 3 advance, and were notified as to the reasons why parole was denied”); see also Greenholtz v. 4 Inmates of Neb. Penal, 442 U.S. 1, 16 (1979). For the reasons that follow, applying this standard 5 here requires that the petition for writ of habeas corpus be denied. 6 I. Procedural Background 7 Petitioner is confined pursuant to a 1991 judgment of conviction entered against him in 8 the San Joaquin County Superior Court following his conviction on charges of second degree 9 murder, assault with a firearm, and shooting into an inhabited dwelling. Pet. at 1.1 Pursuant to 10 11 that conviction, petitioner was sentenced to fifteen years to life in state prison. Id. The parole consideration hearing that is placed at issue by the instant petition was held on 12 July 19, 2007. Id. at 65. Petitioner appeared at and participated in the hearing. Id. at 69-117. 13 Following deliberations held at the conclusion of the hearing, the Board panel announced their 14 decision to deny petitioner parole for two years and the reasons for that decision. Id. at 121-32. 15 Petitioner challenged the Board’s 2007 decision in a petition for writ of habeas corpus 16 filed in the San Joaquin County Superior Court. Answer, Ex. 1. The Superior Court denied that 17 petition in a decision on the merits of petitioner’s claims. Id. Petitioner subsequently challenged 18 the Board’s 2007 decision in a petition for writ of habeas corpus filed in the California Court of 19 Appeal and a petition for review filed in the California Supreme Court. Answer, Exs. 2, 4. 20 Those petitions were summarily denied. Answer, Exs. 3, 5. 21 II. Petitioner’s Claim 22 Petitioner claims that the Board’s 2007 decision finding him unsuitable for parole 23 violated his right to due process because it was “not supported by ‘some evidence’ nor was there 24 a rational link or nexus between the conclusion reached and the evidence cited . . . making the 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 Parole Board’s decision arbitrary and capricious, violative of the petitioner’s right to Due 2 Process.” Pet. at 19. 3 III. Analysis 4 The due process clause of the Fourteenth Amendment prohibits state action that deprives 5 a person of life, liberty, or property without due process of law. A litigant alleging a due process 6 violation must first demonstrate that he was deprived of a liberty or property interest protected 7 by the due process clause and then show that the procedures attendant upon the deprivation were 8 not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459- 9 60 (1989). 10 A protected liberty interest may arise from either the due process clause of the United 11 States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 12 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 13 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The 14 United States Constitution does not, of its own force, create a protected liberty interest in a 15 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 16 Greenholtz, 442 U.S. at 7 (There is “no constitutional or inherent right of a convicted person to 17 be conditionally released before the expiration of a valid sentence.”); see also Hayward v. 18 Marshall, 603 F.3d 546, 561 (9th Cir. 2010) (en banc). However, “a state’s statutory scheme, if 19 it uses mandatory language, ‘creates a presumption that parole release will be granted’ when or 20 unless certain designated findings are made, and thereby gives rise to a constitutional liberty 21 interest.” Greenholtz, 442 U.S. at 12). See also Allen, 482 U.S. at 376-78; 22 23 California’s parole scheme2 gives rise to a liberty interest in parole protected by the federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 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). 3 1 197627, at *2 (Jan. 24, 2011) (per curiam). However, the United States Supreme Court has held 2 that correct application of California’s “some evidence” standard is not required by the federal 3 due process clause. Swarthout, 2011 WL 197627, at *2. Rather, this court’s review is limited to 4 the narrow question of whether the petitioner has received adequate process for seeking parole. 5 Id. at *3 (“Because the only federal right at issue is procedural, the relevant inquiry is what 6 process [petitioner] received, not whether the state court decided the case correctly.”). Adequate 7 process is provided when the inmate is allowed a meaningful opportunity to be heard and a 8 statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied 9 where petitioners were “allowed to speak at their parole hearings and to contest the evidence 10 against them, were afforded access to their records in advance, and were notified as to the 11 reasons why parole was denied”); see also Greenholtz, 442 U.S. at 16. 12 Here, the record reflects that petitioner was present at the 2007 parole hearing, that he 13 participated in the hearing, and that he was provided with the reasons for the Board’s decision to 14 deny parole. Pursuant to Swarthout, this is all that due process requires. Accordingly, 15 petitioner’s application for a writ of habeas corpus should be denied. 16 IV. Conclusion 17 18 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 24 within the specified time may waive the right to appeal the District Court’s order. Turner v. 25 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 //// 4 1 In any objections he elects to file, petitioner may address whether a certificate of 2 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 3 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 4 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 5 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 6 appealability to review the denial of a habeas petition challenging an administrative decision 7 such as the denial of parole by the parole board). 8 DATED: February 8, 2011. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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