-KJN (HC) DeVries v. Moore, No. 2:2008cv03138 - Document 16 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/31/11 recommending that this action be dismissed without prejudice re 1 Petition for Writ of Habeas Corpus filed by Michael F DeVries. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 days.(Dillon, M)

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-KJN (HC) DeVries v. Moore Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL F. DE VRIES, 11 Petitioner, 12 vs. 13 No. 2:08-cv-3138 KJM KJN P STEVE MOORE, 14 Respondent. 15 16 FINDINGS & RECOMMENDATIONS / By order January 7, 2011, petitioner was ordered to show cause, within twenty- 17 one days, why his action should not be dismissed. The twenty-one day period has now expired, 18 and petitioner has not shown cause or otherwise responded to the court’s order. 19 Petitioner claims that his federal constitutional right to due process was violated 20 by a 2007 decision of the California Board of Parole Hearings (hereafter “the Board”) to deny 21 him a parole date. 22 The Due Process Clause of the Fourteenth Amendment prohibits state action that 23 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 24 due process violation must first demonstrate that he was deprived of a liberty or property interest 25 protected by the Due Process Clause and then show that the procedures attendant upon the 26 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 1 Dockets.Justia.com 1 490 U.S. 454, 459-60 (1989). 2 A protected liberty interest may arise from either the Due Process Clause of the 3 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 4 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 5 221 (2005) (citations omitted); see also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). 6 The United States Constitution does not, of its own force, create a protected liberty interest in a 7 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 8 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 9 inherent right of a convicted person to be conditionally released before the expiration of a valid 10 sentence.”). However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a 11 presumption that parole release will be granted’ when or unless certain designated findings are 12 made, and thereby gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12; see 13 also Allen, 482 U.S. at 376-78. 14 California’s parole statutes give rise to a liberty interest in parole protected by the 15 federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 16 197627, at *2 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless 17 there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 18 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in 19 Swarthout the United States Supreme Court held that “[n]o opinion of [theirs] supports 20 converting California’s ‘some evidence’ rule into a substantive federal requirement.” Swarthout, 21 2011 WL 197627, at *3. In other words, the Court specifically rejected the notion that there can 22 be a valid claim under the Fourteenth Amendment for insufficiency of evidence presented at a 23 parole proceeding. Id. at *3. Rather, the protection afforded by the federal due process clause to 24 California parole decisions consists solely of the “minimal” procedural requirements set forth in 25 Greenholtz, specifically “an opportunity to be heard and . . . a statement of the reasons why 26 parole was denied.” Swarthout, at *2-3. 2 1 Here, the record reflects that petitioner was present at the 2007 parole hearing, 2 that he participated in the hearing, and that he was provided with the reasons for the Board’s 3 decision to deny parole. (Dkt. No. 11-4 at 30-165.) According to the United States Supreme 4 Court, the federal due process clause requires no more. Accordingly, petitioner’s application for 5 a writ of habeas corpus should be denied. 6 7 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 10 one days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files 13 objections, he shall also address whether a certificate of appealability should issue and, if so, why 14 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 15 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 16 § 2253(c)(3). Any reply to the objections shall be served and filed within fourteen days after 17 service of the objections. The parties are advised that failure to file objections within the 18 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 19 F.2d 1153 (9th Cir. 1991). 20 DATED: January 31, 2011 21 22 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 23 24 devr3138.157 25 26 3

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