(HC) McEachern v. Haviland, No. 2:2010cv01074 - Document 18 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/28/11 RECOMMENDING that 1 Petition for Writ of Habeas Corpus be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
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(HC) McEachern v. Haviland Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEVIN McEACHERN, 11 12 13 14 15 16 Petitioner, No. CIV S-10-1074 JAM EFB P vs. JOHN W. HAVILAND, Respondent. FINDINGS AND RECOMMENDATIONS / Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the decision of the California Board 18 of Parole Hearings (hereinafter “Board”) to deny him parole at a parole consideration hearing 19 held on October 23, 2008. He claims that the Board’s 2008 decision finding him unsuitable for 20 parole violated his federal right to due process. 21 As discussed below, the United States Supreme Court has held that the only inquiry on 22 federal habeas review of a denial of parole is whether the petitioner has received “fair 23 procedures” for vindication of the liberty interest in parole given by the state. Swarthout v. 24 Cooke, 562 U.S. ___, No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). In the 25 context of a California parole suitability hearing, a petitioner receives adequate process when 26 he/she is allowed an opportunity to be heard and a statement of the reasons why parole was 1 Dockets.Justia.com 1 denied. Id. at **2-3 (federal due process satisfied where petitioners were “allowed to speak at 2 their parole hearings and to contest the evidence against them, were afforded access to their 3 records in advance, and were notified as to the reasons why parole was denied”); see also 4 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 16 (1979). For the reasons that follow, 5 applying this standard here requires that the petition for writ of habeas corpus be denied. 6 I. Procedural Background 7 Petitioner is confined pursuant to a 1986 judgment of conviction entered against him in 8 the San Diego County Superior Court following his conviction on charges of first degree 9 murder with use of a deadly weapon. Pet. at 1.1 Pursuant to that conviction, petitioner was 10 sentenced to twenty-six years to life in state prison. Id. at 1. 11 The parole consideration hearing that is placed at issue by the instant petition was held on 12 October 23, 2008. Id. at 69. Petitioner appeared at and participated in the hearing. Id. at 71- 13 120. Following deliberations held at the conclusion of the hearing, the Board panel announced 14 their decision to deny petitioner parole for two years and the reasons for that decision. Id. at 15 121-26. Petitioner challenged the Board’s 2008 decision in a petition for writ of habeas corpus 16 17 filed in the San Diego Superior Court. Answer, Ex. 1. The Superior Court denied that petition 18 in a decision on the merits of petitioner’s claims. Id., Ex. 2. Petitioner subsequently challenged 19 the Board’s 2008 decision in a petition for writ of habeas corpus filed in the California Court of 20 Appeal. Id., Ex. 3. That petition was also denied in a reasoned decision. Id., Ex. 4. Petitioner 21 subsequently filed a petition for writ of habeas corpus in the California Supreme Court. Id., Ex. 22 6. That petition was summarily denied. Id. 23 //// 24 //// 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 II. Analysis 2 Petitioner claims that the Board’s 2008 decision finding him unsuitable for parole 3 violated his right to due process because it was not supported by “some evidence” that he posed 4 a current danger to society if released from prison. 5 The Due Process Clause of the Fourteenth Amendment prohibits state action that 6 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 7 due process violation must first demonstrate that he was deprived of a liberty or property interest 8 protected by the Due Process Clause and then show that the procedures attendant upon the 9 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 10 490 U.S. 454, 459-60 (1989). 11 A protected liberty interest may arise from either the Due Process Clause of the United 12 States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 13 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 14 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The 15 United States Constitution does not, of its own force, create a protected liberty interest in a 16 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 17 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 18 inherent right of a convicted person to be conditionally released before the expiration of a valid 19 sentence.”); see also Hayward v. Marshall, 603 F.3d 546, 561 (9th Cir. 2010) (en banc). 20 However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a presumption that 21 parole release will be granted’ when or unless certain designated findings are made, and thereby 22 gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12). See also Allen, 482 23 U.S. at 376-78. 24 //// 25 //// 26 //// 3 California’s parole scheme2 gives rise to a liberty interest in parole protected by the 1 2 federal due process clause. McQuillion v. Duncan, 306 F.3d 895, 902-03 (9th Cir. 2002) 3 (“California's parole scheme gives rise to a cognizable liberty interest in release on parole.”); see 4 Swarthout v. Cooke, No. 10-333, 562 U.S. ___, 2011 U.S. LEXIS 1067, *5-6 (Jan. 24, 2011) 5 (per curiam) (stating that the Ninth Circuit’s determination that California’s parole law creates a 6 liberty interest protected by the federal due process clause “is a reasonable application of our 7 cases.”). However, the United States Supreme Court has held that correct application of 8 California’s “some evidence” standard is not required by the federal Due Process Clause. 9 Swarthout, 2011 WL 197627, at *2. Rather, this court’s review is limited to the narrow question 10 of whether the petitioner has received adequate process for seeking parole. Id. at *3. (“Because 11 the only federal right at issue is procedural, the relevant inquiry is what process [petitioner] 12 received, not whether the state court decided the case correctly.”) Adequate process is provided 13 when the inmate is allowed a meaningful opportunity to be heard and a statement of the reasons 14 why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners were 15 “allowed to speak at their parole hearings and to contest the evidence against them, were 16 afforded access to their records in advance, and were notified as to the reasons why parole was 17 denied”); see also Greenholtz, 442 U.S. at 16. 18 Here, the record reflects that petitioner was present at the 2008 parole hearing, that he 19 participated in the hearing, and that he was provided with the reasons for the Board’s decision to 20 deny parole. Pursuant to Swarthout, this is all that due process requires. Accordingly, petitioner 21 is not entitled to habeas corpus relief. 22 //// 23 //// 24 25 26 2 In California, a prisoner is entitled to release on parole unless there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). 4 1 2 3 III. Conclusion Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 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). 11 In any objections he elects to file, petitioner may address whether a certificate of 12 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 13 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 14 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 15 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 16 appealability to review the denial of a habeas petition challenging an administrative decision 17 such as the denial of parole by the parole board). 18 DATED: February 28, 2011. 19 20 21 22 23 24 25 26 5
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