(HC) Lollis v. Haviland, No. 2:2009cv03558 - Document 29 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/16/11 RECOMMENDING that 1 Petition for Writ of Habeas Corpus be denied, though petitioners Fourteenth Amendment claim is denied without prejudice as he is part of the Gilman class action. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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(HC) Lollis v. Haviland Doc. 29 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEITH LOLLIS, 11 12 13 Petitioner, No. CIV S-09-3558 MCE GGH P vs. J.W. HAVILAND, et al., 14 Respondent. 15 FINDINGS & RECOMMENDATIONS / 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2008 decision by the California 18 Board of Parole Hearings (BPH) finding him unsuitable for parole. 19 On January 28, 2011, the undersigned ordered both parties to provide briefing 20 regarding the recent United States Supreme Court decision that found that the Ninth Circuit erred 21 in commanding a federal review of the state’s application of state law in applying the “some 22 evidence” standard in the parole eligibility habeas context. Swarthout v. Cooke, 502 U.S. ___, 23 ___ S. Ct. ___, 131 S. Ct. 859, 861 (2011).1 24 Respondent timely filed briefing but petitioner has not responded to the court’s 25 1 26 The earlier citation in the prior order was to Swarthout v. Cooke, 502 U.S. ___, ___ S. Ct. ___, 2011 WL 197627 *2 (Jan. 24, 2011) 1 Dockets.Justia.com 1 order. For the reasons set forth in the prior order, it appears there is no federal due process 2 requirement for a “some evidence” review, thus the federal courts are precluded from a review of 3 the state court’s application of its “some evidence” standard.2 Petitioner’s claim based on an 4 alleged violation of California’s “some evidence” requirement should therefore be denied. 5 Petitioner also alleges that the BPH decision to defer his next parole consideration 6 for four years violated his due process rights under the Fourteenth Amendment. This claim 7 should be dismissed without prejudice in light of the class action, Gilman v. Fisher, CIV-S-05- 8 0830 LKK GGH. The parameters of the Gilman class, as is made clear in the Order certifying 9 the class, include petitioner. Order, filed on March 4, 2009, in Gilman v. Fisher, CIV-S-05-0830 10 LKK GGH.3 11 The Gilman class is made up of: 12 California state prisoners who: “(i) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions.” 13 14 Id., p. 10.4 15 What is at issue in the suit are alleged violations of the Ex Post Facto clause and 16 the Fourteenth Amendment Due Process Clause with respect to “the procedures used in 17 determining suitability for parole: the factors considered, the explanations given, and the 18 frequency of the hearings.” Id., p. 8 [emphasis in original]. The “frequency of the hearings” is 19 20 21 22 23 24 2 The court notes some perversity in the result here. Loss of good-time credits, even for a day, pursuant to decision at a prison disciplinary hearing, must be supported by “some evidence.” Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768 (1985). Assignment to administrative segregation requires the same “some evidence” before such an assignment can be justified. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.2003). However, a denial of parole eligibility after sometimes decades in prison, and where another opportunity for parole can be delayed for as long as fifteen more years, requires no such protection from the federal due process standpoint. Nevertheless, such is the state of the law. 3 25 See Docket # 182 of Case No. 05-CV-0830. 4 26 The Ninth Circuit affirmed the Order, certifying the class. See Docket # 258 in Case No. 05-CV-0830. 2 1 what is at issue in petitioner’s claim. 2 Accordingly, IT IS HEREBY RECOMMENDED that the petition be denied, 3 though petitioner’s Fourteenth Amendment claim is denied without prejudice as he is part of the 4 Gilman class action as described above. 5 If petitioner files objections, he shall also address if a certificate of appealability 6 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 7 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 8 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 9 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within fourteen days after service of the objections. The parties are 16 advised that failure to file objections within the specified time may waive the right to appeal the 17 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: March 16, 2011 19 20 /s/ Gregory G. Hollows ___________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE GGH: AB loll3558.dis 21 22 23 24 25 26 3
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