(HC) Jackson v. Haviland, No. 2:2009cv02307 - Document 15 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 05/19/11 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Morrison C. England Jr. Objections due within 21 days. (Plummer, M)
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(HC) Jackson v. Haviland Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEVIN JACKSON, 11 Petitioner, 12 13 No. CIV S-09-2307 MCE DAD P vs. JOHN W. HAVILAND, 14 Respondent. 15 FINDINGS & RECOMMENDATIONS / 16 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board 18 of Parole Hearings (hereinafter “Board”) to deny him parole for two years at his ninth subsequent 19 parole consideration hearing held on November 6, 2007. He claims that the Board’s decision 20 violated his right to due process. Upon careful consideration of the record and the applicable 21 law, the undersigned will recommend that petitioner’s application for habeas corpus relief be 22 denied. 23 I. Procedural Background 24 Petitioner is confined pursuant to a 1986 judgment of conviction entered against 25 him in the Los Angeles County Superior Court following his conviction on charges of 26 ///// 1 Dockets.Justia.com 1 kidnapping for robbery. (Pet. at 1.)1 Pursuant to that conviction, petitioner was sentenced to 2 seven years to life plus three years in state prison. (Id.) 3 Petitioner’s ninth subsequent parole consideration hearing, which is placed at 4 issue by the instant petition, was held on November 6, 2007. (Pet. at 30.) Petitioner appeared at 5 and participated in the hearing. Id. at 30-122. Following deliberations held at the conclusion of 6 the hearing, the Board panel announced both their decision to deny petitioner parole for two 7 years and the reasons for that decision. Id. at 123-34 8 On February 6, 2008, petitioner filed a petition for writ of habeas corpus in the 9 Los Angeles County Superior Court challenging the Board’s 2007 decision. (Answer, Ex. A.) 10 That court denied the petition in a reasoned decision on the merits of petitioner’s claims. 11 (Answer, Ex. B.) Petitioner subsequently challenged the Board’s 2007 decision in a petition for 12 writ of habeas corpus filed in the California Supreme Court. (Answer, Ex. C.) That petition was 13 summarily denied. (Answer, Ex. D.) 14 Petitioner then filed his federal application for habeas relief in this court. Therein, 15 petitioner contends that the Board’s 2007 decision finding him unsuitable for parole after he had 16 served “his minimum and maximum” violated his right to due process because there was no 17 evidence before the Board establishing that he was a then-current threat to public safety. (Pet. at 18 4, 6, 10-12.) Petitioner argues that the Board improperly relied on his commitment offense and 19 prior criminal history to find him unsuitable for parole even though those factors “will never 20 change.” (Id. at 5, 7.) In this regard, petitioner disagrees that his crime was carried out in a “very 21 callous manner,” as found by the Board. (Id. at 5-6.) Petitioner also argues that he has met all of 22 the standards established under California law indicating that he is suitable for parole, whereas he 23 does not meet the state criteria for a finding of unsuitability. (Id. at 9.) Petitioner further argues 24 that the Board improperly relied on his prison disciplinary record to find him unsuitable for 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. (Id. at 13.) He contends that the conduct underlying his prison disciplinary record does 2 not justify a finding that he is dangerous. (Id. at 13-14.) In short, petitioner claims that the 3 Board’s 2007 decision to deny him parole was not supported by “some evidence” that he posed a 4 current danger to society if released from prison, as required under California law. 5 II. Scope of Review Applicable to Due Process Challenges to the Denial of Parole 6 The Due Process Clause of the Fourteenth Amendment prohibits state action that 7 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 8 due process violation must first demonstrate that he was deprived of a liberty or property interest 9 protected by the Due Process Clause and then show that the procedures attendant upon the 10 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 11 490 U.S. 454, 459-60 (1989). 12 A protected liberty interest may arise from either the Due Process Clause of the 13 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 14 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 15 221 (2005). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States 16 Constitution does not, of its own force, create a protected liberty interest in a parole date, even 17 one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of 18 Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or inherent right of a convicted 19 person to be conditionally released before the expiration of a valid sentence.”). However, a 20 state’s statutory scheme, if it uses mandatory language, “creates a presumption that parole release 21 will be granted” when or unless certain designated findings are made, and thereby gives rise to a 22 constitutional liberty interest. Greenholtz, 442 U.S. at 12. See also Allen, 482 U.S. at 376-78. 23 California’s parole scheme gives rise to a liberty interest in parole protected by the 24 federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th 25 Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002); see also Swarthout v. 26 Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 861-62 (2011) (finding the Ninth Circuit’s holding in 3 1 this regard to be a reasonable application of Supreme Court authority); Pearson v. Muntz, 2 ___F.3d___, 2011 WL 1238007, at *4 (9th Cir. Apr. 5, 2011) (“[Swarthout v.] Cooke did not 3 disturb our precedent that California law creates a liberty interest in parole.”) In California, a 4 prisoner is entitled to release on parole unless there is “some evidence” of his or her current 5 dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 6 Cal.4th 616, 651-53 (2002). 7 In Swarthout, the Supreme Court reviewed two cases in which California 8 prisoners were denied parole - in one case by the Board, and in the other by the Governor after 9 the Board had granted parole. Swarthout, 131 S. Ct. at 860-61. The Supreme Court noted that 10 when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment 11 requires fair procedures, “and federal courts will review the application of those constitutionally 12 required procedures.” Id. at 862. The Court concluded that in the parole context, however, “the 13 procedures required are minimal” and that the “Constitution does not require more” than “an 14 opportunity to be heard” and being “provided a statement of the reasons why parole was denied.” 15 Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit 16 decisions that went beyond these minimal procedural requirements and “reviewed the state 17 courts’ decisions on the merits and concluded that they had unreasonably determined the facts in 18 light of the evidence.” Swarthout, 131 S. Ct. at 862. In particular, the Supreme Court rejected 19 the application of the “some evidence” standard to parole decisions by the California courts as a 20 component of the federal due process standard. Id. at 862-63.2 See also Pearson, 2011 WL 21 1238007, at *4. 22 23 24 25 26 2 In its per curiam opinion the Supreme Court did not acknowledge that for twenty-four years the Ninth Circuit had consistently held that in order to comport with due process a state parole board’s decision to deny parole had to be supported by “some evidence,” as defined in Superintendent v. Hill, 472 U.S. 445 (1985), that bore some indicia of reliability. See Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002) (“In Jancsek . . . we held that the process that is due in the parole rescission setting is the same as the Supreme Court outlined in Superintendent v. Hill . . . .”) 4 1 2 III. Petitioner’s Claims As noted above, here petitioner seeks federal habeas relief on the grounds that the 3 Board’s 2007 decision to deny him parole, and the findings upon which that denial was based, 4 were not supported by “some evidence” that he posed a current danger to society if released from 5 prison as required under California law. (Pet. at 12, 14-24.) However, under the Supreme 6 Court’s decision in Swarthout this court may not review whether California’s “some evidence” 7 standard was correctly applied in petitioner’s case. 131 S. Ct. at 862-63; see also Miller v. 8 Oregon Bd. of Parole and Post-Prison Supervision, ___F.3d___, 2011 WL 1533512, at *5 (9th 9 Cir. Apr. 25, 2011) (“The Supreme Court held in [Swarthout v.] Cooke that in the context of 10 parole eligibility decisions the due process right is procedural, and entitles a prisoner to nothing 11 more than a fair hearing and a statement of reasons for a parole board’s decision[.]”); Roberts v. 12 Hartley, ___F.3d___, 2011 WL 1365811, at *3 (9th Cir. Apr. 12, 2011) (under the decision in 13 Swarthout, California’s parole scheme creates no substantive due process rights and any 14 procedural due process requirement is met as long as the state provides an inmate seeking parole 15 with an opportunity to be heard and a statement of the reasons why parole was denied); Pearson, 16 2011 WL 1238007, at *3 (“While the Court did not define the minimum process required by the 17 Due Process Clause for denial parole under the California system, it made clear that the Clause’s 18 requirements were satisfied where the inmates ‘were allowed to speak at their parole hearings 19 and to contest the evidence against them, were afforded access to their records in advance, and 20 were notified as to the reasons why parole was denied.’”) 21 The federal habeas petition pending before the court in this case reflects that 22 petitioner was represented by counsel at his 2007 parole suitability hearing. (Pet. at 31.) As 23 noted above, the record also establishes that at his 2007 hearing petitioner was given the 24 opportunity to be heard and received a statement of the reasons why parole was denied by the 25 Board panel. That is all the process that was due petitioner under the Constitution. Swarthout, 26 131 S. Ct. 862; see also Miller, 2011 WL 1533512, at *5; Roberts,2011 WL 1365811, at *3; 5 1 Pearson, 2011 WL 1238007, at *3. It now plainly appears that petitioner is not entitled to relief 2 with respect to his due process claims. Accordingly, the pending petition should be denied. 3 IV. Conclusion 4 5 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 8 one days after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 11 shall be served and filed within fourteen days after service of the objections. Failure to file 12 objections within the specified time may waive the right to appeal the District Court’s order. 13 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 14 1991). 15 In any objections he elects to file, petitioner may address whether a certificate of 16 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 17 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 18 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 19 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 20 appealability to review the denial of a habeas petition challenging an administrative decision 21 such as the denial of parole by the parole board). 22 DATED: May 19, 2011. 23 24 25 DAD:8: jackson2307.hc 26 6