(HC) Barnes v. Board of Prison Terms/Hearings, No. 2:2008cv02021 - Document 43 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/09/10 recommending that respondent's 07/02/09 motion to dismiss 39 be granted and petitioner's application for a writ of habeas corpus be dismissed. Motion to Dismiss 39 referred to Judge John A. Mendez; Objections due within 14 days. (Plummer, M)
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(HC) Barnes v. Board of Prison Terms/Hearings Doc. 43 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DELANEY BARNES, Petitioner, 11 12 13 14 vs. CLAUDE FINN, Warden, Respondent. FINDINGS AND RECOMMENDATIONS / 15 16 No. CIV S-08-2021 JAM EFB P Petitioner is a former state prisoner proceeding without counsel on a petition for writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. When petitioner commenced this action, he was 18 incarcerated at the Deuel Vocational Institute on a parole violation. See Dckt. No. 1. On July 2, 19 2009, respondent moved to dismiss this action on the grounds that petitioner failed to state a 20 claim for federal habeas relief and failed to exhaust state court remedies as to one of his claims. 21 On July 20, 2009, petitioner filed an opposition brief. For the reasons explained below, the 22 motion must be granted. 23 This court has authority under Rule 4 to dismiss a petition if it “plainly appears from the 24 face of the petition and any attached exhibits that the petitioner is not entitled to relief in the 25 district court . . . .” Rule 4, Rules Governing Section 2254 Cases. As a corollary to that rule, the 26 court may also consider a respondent’s motion to dismiss, filed in lieu of an answer, on the same 1 Dockets.Justia.com 1 grounds. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to 2 evaluate a motion to dismiss for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 3 602-03 (9th Cir. 1989) (using Rule 4 as the procedural vehicle to review a motion to dismiss for 4 state procedural default). 5 I. 6 Background This action proceeds on the October 17, 2008 amended petition. Dckt. No. 22. Petitioner 7 claims that the Board of Parole Hearings violated his due process rights by conducting his 8 “probable cause and final revocation hearings past the time set forth by [the] Valdivia permanent 9 injunction” and that he received ineffective assistance of counsel at his revocation hearing. 10 Dckt. No. 22 at 5-6. See Valdivia v. Schwarzenegger, No. Civ. S-94-0671 LKK (E.D. Cal.); see 11 also Pet’r Opp’n to Resp.’s Mot. to Dims. (“Opp’n”), Ex. A (copy of Valdivia’s March 9, 2004 12 Stipulated Order for Permanent Injunctive Relief, describing required procedures for probable 13 cause and revocation hearings). Petitioner also claims that the Board of Parole hearings “no 14 longer has an appeals unit [and] therefore the decisions regarding revocation issues cannot be 15 appealed at the Prison, DUI Tracy.” Dckt. No. 22 at 6. 16 II. Analysis 17 A. Failure to Exhaust 18 Respondent submits that petitioner failed to exhaust his ineffective assistance of counsel 19 claim. Resp.’s Mot. to Dism. (“Mot.) at 5. A district court may not grant a petition for a writ of 20 habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. 21 § 2254(b)(1). A state will not be deemed to have waived the exhaustion requirement unless the 22 state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3). Exhaustion 23 of state remedies requires that petitioners fairly present federal claims to the highest state court, 24 either on direct appeal or through state collateral proceedings, in order to give the highest state 25 court “the opportunity to pass upon and correct alleged violations of its prisoners’ federal 26 rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations omitted). 2 1 On August 1, 2008, petitioner filed a habeas petition in the state supreme court, which 2 was denied on September 10, 2008. Mot., Exs. 5, 6. That petition did not include an ineffective 3 assistance of counsel claim, though it did include the other two claims raised in the instant 4 petition. See id., Ex. 5. It is petitioner’s burden to establish exhaustion. Cartwright v. Cupp, 5 650 F.2d 1103, 1104 (9th Cir. 1981), cert. denied, 455 U.S. 1023 (1982). In his opposition brief, 6 petitioner does not address respondent’s exhaustion argument or otherwise contend that his 7 ineffective assistance of counsel claim is exhausted. This claim must therefore be dismissed as 8 unexhausted. 9 10 B. Failure to State a Claim Respondent also moves to dismiss on the ground that petitioner has not stated a federal 11 claim for relief. The Constitution requires that a parole “revocation hearing [] be tendered within 12 a reasonable time after the parolee is taken into custody.” Morrissey v. Brewer, 408 U.S. 471, 13 488 (1972). A due process violation only occurs when the delay in holding a revocation hearing 14 is both unreasonable and prejudicial. Camacho v. White, 918 F.2d 74, 79 (9th Cir. 1990). 15 Petitioner claims only that the Board did not comply with the time requirements established in 16 the Stipulated Order for Permanent Injunction issued in the Valdivia action, as his final 17 revocation hearing was held 36 days after his parole hold. See Dckt. No. 22 at 5; Opp’n at 2, ¶ 3. 18 Petitioner does not allege any facts suggesting that he was prejudiced by the delay. Moreover, 19 the 36 day delay here must be examined in light of the Supreme Court holding in Morrissey that 20 a delay of two months was reasonable for purposes of the Due Process Clause. Morrissey, 408 21 U.S. at 488. The delay in issue here is not unreasonable and petitioner’s claim therefore, does 22 not implicate his right to due process. 23 Nor does petitioner’s attempt to predicate a constitutional claim under the Valdivia case 24 properly state a claim. “[A] remedial court order, such as the one entered in the Valdivia case, 25 . . . create rights, privileges or immunities secured by the Constitution.” Soto v. Bd. of Prison 26 Terms, No. CIV S-07-0414 GEB DAD P, 2007 U.S. Dist. LEXIS 92112, at *2-3 (E.D. Cal. Dec. 3 1 6, 2007) (citing Green v. McKaskle, 788 F.2d 1116, 1123-24 (5th Cir. 1986) (remedial decrees 2 are means by which unconstitutional conditions are corrected but do not create or enlarge 3 constitutional rights)); see also Hope v. Felker, No. CIV S-05-0721 FCD DAD P, 2006 U.S. 4 Dist. LEXIS 16388, at *3 (E.D. Cal. Apr. 5, 2006), adopted in full by 2006 U.S. Dist. LEXIS 5 31712 (E.D. Cal. May 19, 2006). “If a state prisoner alleges no deprivation of a federal right, 6 § 2254 is simply inapplicable.” Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982). Since the terms 7 set forth in the Valdivia injunction do not create or enlarge petitioner’s constitutional rights, they 8 cannot form a basis for relief pursuant to 28 U.S.C. § 2254. See Denham v. Schwarzenegger, 9 No. CV F 05-0995 AWI DLB, 2005 U.S. Dist. LEXIS 29951, at *18-19 (E.D. Cal. Nov. 16, 10 2005) (noting that Valdivia does not provide “a separate, private cause of action,” and that “any 11 violations of orders issued in Valdivia” must be raised in Valdivia). 12 Petitioner’s last claim is that “decisions regarding revocation issues cannot be appealed” 13 at his place of incarceration.1 Dckt. No. 22. at 6. Petitioner does not identify what federal right, 14 if any, that he believes this violates.2 Without knowing what federal right is being asserted, the 15 court cannot evaluate the merits of the claim. If petitioner intended to raise a due process claim, 16 it must fail because the right to an administrative appeal is not included among the procedural 17 protections afforded at revocation hearings. See Morrissey, 408 U.S. at 485-89 (describing the 18 minimal due process protections applicable to parole revocation hearings). 19 //// 20 //// 21 //// 22 23 24 25 26 1 Although respondent does not directly address this claim in his motion to dismiss, the court may dismiss it pursuant to its authority under Rule 4 of the Rules Governing Section 2254 Cases. 2 It appears from the docket that petitioner may have included this allegation as an explanation as to why he did not complete an informal appeal, rather than as an actual ground for relief. See Dckt. No. 1. at 2. 4 1 2 III. Conclusion In light of the above, the court finds that petitioner’s ineffective assistance of counsel 3 claim is unexhausted and that the petition otherwise fails to state a cognizable claim for federal 4 habeas relief. 5 6 Accordingly, IT IS HEREBY RECOMMENDED that respondent’s July 2, 2009 motion to dismiss be granted and petitioner’s application for a writ of habeas corpus be dismissed. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 12 within the specified time may waive the right to appeal the District Court’s order. Turner v. 13 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 his objections, petitioner may address whether a certificate of appealability should issue in the 15 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 16 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 17 enters a final order adverse to the applicant). 18 Dated: February 9, 2010. 19 20 21 22 23 24 25 26 5 In
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