-JFM (HC) Cade v. Swarthout, No. 2:2010cv01592 - Document 16 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 4/19/11 RECOMMENDING that 1 Petition for Writ of Habeas Corpus be denied; and the district court decline to issue a certificate of appealability. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)
Download PDF
-JFM (HC) Cade v. Swarthout Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JERMAINE CADE, 11 12 13 Petitioner, No. 2:10-cv-1592 KJM JFM (HC) vs. GARY SWARTHOUT, Warden, 14 Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner is a state prisoner proceeding pro se with an application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that his federal constitutional 18 right to due process was violated by a 2009 decision of the California Board of Parole Hearings 19 to deny him a parole date.1 20 21 22 23 24 25 26 1 Petitioner filed his petition on June 23, 2010. By order filed July 21, 2010, respondent was directed to file an answer to the petition within forty-five days and petitioner’s traverse was due thirty days after respondent’s answer was filed. On September 3, 2010, respondent filed an answer to the petition, and on September 27, 2010, petitioner filed a traverse. Review of petitioner’s traverse demonstrates that it is responsive to respondent’s answer. On April 12, 2011, petitioner filed a letter addressed to the Clerk of the Court, in which he states that he was “informed by the courts back in September that the Attorney General had 60 days to respond to the Courts request to show cause”, that the deadline would expire in November, and that he has received nothing from the Attorney General. Though the letter bears the case number assigned to this action, the contents thereof do not accurately reflect the posture of the briefing in this action. The letter will therefore be disregarded. 1 Dockets.Justia.com 1 FACTUAL AND PROCEDURAL BACKGROUND 2 On November 18, 1992, petitioner was convicted of second degree murder, 3 attempted first degree murder, and assault with a firearm. See Petition for Writ of Habeas 4 Corpus, filed June 23, 2010, at 1. On January 11, 1993, he was sentenced to twenty years to life 5 in prison. Id. On July 27, 2009, petitioner appeared before the Board for a subsequent parole 6 consideration hearing. See id. at 6-3. Petitioner appeared at and participated in the hearing. See 7 Ex. G to Ex. 2 to Answer to Petition for Writ of Habeas Corpus, filed September 2, 2010. 8 Following deliberations held at the conclusion of the hearing, the Board announced their decision 9 to deny petitioner parole and the reasons for that decision. Id. at 96-104. 10 11 ANALYSIS I. Standards for a Writ of Habeas Corpus 12 13 Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim: 14 (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 15 16 (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. 17 18 28 U.S.C. § 2254(d). 19 Under section 2254(d)(1), a state court decision is “contrary to” clearly 20 established United States Supreme Court precedents if it applies a rule that contradicts the 21 governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially 22 indistinguishable from a decision of the Supreme Court and nevertheless arrives at different 23 result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 24 (2000)). 25 26 Under the “unreasonable application” clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle 2 1 from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the 2 prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ 3 simply because that court concludes in its independent judgment that the relevant state-court 4 decision applied clearly established federal law erroneously or incorrectly. Rather, that 5 application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 6 (2003) (it is “not enough that a federal habeas court, in its independent review of the legal 7 question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”) (internal citations 8 omitted). 9 The court looks to the last reasoned state court decision as the basis for the state 10 court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court 11 reaches a decision on the merits but provides no reasoning to support its conclusion, a federal 12 habeas court independently reviews the record to determine whether habeas corpus relief is 13 available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 14 II. Petitioner’s Claim 15 As noted above, petitioner claims that the denial of parole violated his federal 16 constitutional right to due process of law. 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 23 United 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, 25 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). 26 The United States Constitution does not, of its own force, create a protected liberty interest in a 3 1 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 2 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 3 inherent right of a convicted person to be conditionally released before the expiration of a valid 4 sentence.”). However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a 5 presumption that parole release will be granted’ when or unless certain designated findings are 6 made, and thereby gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12. See 7 also Allen, 482 U.S. at 376-78. 8 California’s parole statutes give rise to a liberty interest in parole protected by the 9 federal due process clause. Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011). In California, a 10 prisoner is entitled to release on parole unless there is “some evidence” of his or her current 11 dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 12 Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that 13 “[n]o opinion of [theirs] supports converting California’s ‘some evidence’ rule into a substantive 14 federal requirement.” Swarthout, 131 S. Ct. at 862. Rather, the protection afforded by the 15 federal due process clause to California parole decisions consists solely of the “minimal” 16 procedural requirements set forth in Greenholtz, specifically “an opportunity to be heard and . . . 17 a statement of the reasons why parole was denied.” Id. 18 Here, the record reflects that petitioner was present at the 2009 parole hearing, 19 that he participated in the hearing, and that he was provided with the reasons for the Board’s 20 decision to deny parole. According to the United States Supreme Court, the federal due process 21 clause requires no more. Accordingly, petitioner’s application for a writ of habeas corpus should 22 be denied. 23 Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United 24 States District Courts, “[t]he district court must issue or a deny a certificate of appealability when 25 it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of 26 appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial 4 1 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either 2 issue a certificate of appealability indicating which issues satisfy the required showing or must 3 state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons 4 set forth in these findings and recommendations, petitioner has not made a substantial showing of 5 the denial of a constitutional right. Accordingly, no certificate of appealability should issue. 6 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 7 1. Petitioner’s application for a writ of habeas corpus be denied; and 8 2. The district court decline to issue a certificate of appealability. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 11 days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: April 19, 2011. 18 19 20 21 22 12 cade1592.157 23 24 25 26 5