-EFB (TEMP)(HC) Rothwell v. Martell, No. 2:2009cv02917 - Document 20 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 03/24/11 recommending that petitioner's application for writ of habeas corpus be denied; and the clerk be directed to close the case. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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-EFB (TEMP)(HC) Rothwell v. Martell Doc. 20 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 MICHAEL ROTHWELL, Petitioner, 12 vs. 13 14 No. CIV S-09-2917 GEB EFB (TEMP) P M. MARTELL, ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 15 / 16 Petitioner is a California prisoner proceeding with a petition for a writ of habeas corpus 17 18 under 28 U.S.C. § 2254. He challenges a 2008 denial of parole. An application for a writ of habeas corpus by a person in custody under a judgment of a 19 20 state court can be granted only for violations of the Constitution or laws of the United States. 28 21 U.S.C. § 2254(a). Further, federal habeas corpus relief is not available for any claim decided on the merits 22 23 in state court proceedings unless the state court’s adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or 24 25 26 //// 1 Dockets.Justia.com (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 1 2 3 28 U.S.C. § 2254(d) (referenced herein in as “§ 2254(d)” or “AEDPA”).1 It is the habeas 4 petitioner’s burden to show he is not precluded from obtaining relief by § 2254(d). See 5 Woodford v. Visciotti, 537 U.S. 19, 25 (2002). 6 7 The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different. As the Supreme Court has explained: 8 A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the “unreasonable application” clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court’s application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one. 9 10 11 12 13 14 15 Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the 16 law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply 17 fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 18 (2002). 19 The court will look to the last reasoned state court decision in determining whether the 20 law applied to a particular claim by the state courts was contrary to the law set forth in the cases 21 of the United States Supreme Court or whether an unreasonable application of such law has 22 occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 23 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a 24 claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must 25 1 26 Title 28 U.S.C. § 2254(d) establishes a precondition to federal habeas relief, not grounds for entitlement to habeas relief. Fry v. Pliler, 127 S. Ct. 2321, 2326-27 (2007). 2 1 perform an independent review of the record to ascertain whether the state court decision was 2 objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other 3 words, the court assumes the state court applied the correct law, and analyzes whether the 4 decision of the state court was based on an objectively unreasonable application of that law. If 5 the state court does not reach the merits of a particular claim, de novo review applies. Lewis v. 6 Mayle, 391 F.3d 989, 996 (9th Cir. 2004). 7 “Clearly established” federal law is that determined by the Supreme Court. Arredondo v. 8 Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower 9 federal court decisions as persuasive authority in determining what law has been “clearly 10 established” and the reasonableness of a particular application of that law. Duhaime v. 11 Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), 12 overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 365 F.3d at 13 782-83 (noting that reliance on Ninth Circuit or other authority outside bounds of Supreme Court 14 precedent is misplaced). 15 Petitioner asserts he was denied parole in 2008 as a result of violations of the Due 16 Process Clause of the Fourteenth Amendment. The Due Process Clause of the Fourteenth 17 Amendment prohibits state action that deprives a person of life, liberty, or property without due 18 process of law. A litigant alleging a due process violation must first demonstrate that he was 19 deprived of a liberty or property interest protected by the Due Process Clause and then show that 20 the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky 21 Dep’t of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989). 22 A protected liberty interest may arise from either the Due Process Clause of the United 23 States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 24 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 25 (2005) (citations omitted). The United States Constitution does not, of its own force, create a 26 protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 3 1 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no 2 constitutional or inherent right of a convicted person to be conditionally released before the 3 expiration of a valid sentence.”). However, “a state’s statutory scheme, if it uses mandatory 4 language, ‘creates a presumption that parole release will be granted’ when or unless certain 5 designated findings are made, and thereby gives rise to a constitutional liberty interest.” 6 Greenholtz, 442 U.S. at 12; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a 7 state’s use of mandatory language (“shall”) creates a presumption that parole release will be 8 granted when the designated findings are made.). 9 California’s parole statutes give rise to a liberty interest in parole protected by the federal 10 due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 197627, at 11 *2 (Jan. 24, 2011) (per curiam). In California, a prisoner is entitled to release on parole unless 12 there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 13 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in 14 Swarthout the United States Supreme Court held that “[n]o opinion of [theirs] supports 15 converting California’s ‘some evidence’ rule into a substantive federal requirement.” Swarthout, 16 2011 WL 197627, at *3. In other words, the Court specifically rejected the notion that there can 17 be a valid claim under the Fourteenth Amendment for insufficiency of evidence presented at a 18 parole proceeding. Id. at *3. Rather, the protection afforded by the federal due process clause to 19 California parole decisions consists solely of the “minimal” procedural requirements set forth in 20 Greenholtz, specifically “an opportunity to be heard and . . . a statement of the reasons why 21 parole was denied.” Swarthout, at *2-3. 22 Here, the record reflects that petitioner was present at his 2008 parole hearing, Answer, 23 Ex. 1 at 52, he was given an opportunity to be heard throughout his hearing, id. at 52-108, and 24 was provided with the reasons for the decision to deny parole, id. at 95-108. According to the 25 United States Supreme Court, the Due Process Clause requires no more. Accordingly, 26 petitioner’s Due Process Clause claims must be rejected. 4 1 In accordance with the above, IT IS HEREBY RECOMMENDED that: 2 1. Petitioner’s application for writ of habeas corpus be denied; and 3 2. The Clerk be directed to close the case. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 within the specified time may waive the right to appeal the District Court’s order. Turner v. 10 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 11 his objections petitioner may address whether a certificate of appealability should issue in the 12 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 13 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 14 enters a final order adverse to the applicant). 15 DATED: March 24, 2011. 16 17 18 19 20 21 22 23 24 25 26 5
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