-EFB (HC) Carey v. Haviland, No. 2:2010cv01878 - Document 18 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/15/11 RECOMMENDING that petitioner's 1 application for writ of habeas corpus be denied. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)
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-EFB (HC) Carey v. Haviland Doc. 18 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 RICHARD H. CAREY, Petitioner, 10 11 12 13 vs. JOHN HAVILAND, Respondent. FINDINGS AND RECOMMENDATIONS / 14 15 No. CIV 10-1878 KJM EFB P Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 16 U.S.C. § 2254. He challenges the California Board of Parole Hearings’ 2008 finding that he was 17 unsuitable for parole, claiming that the Board’s decision violated his federal right to due process. 18 Dckt. No. 1 at 6-9, 14. 19 In California, a prisoner is entitled to release unless there is “some evidence” of his or her 20 current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re 21 Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). But the United States Supreme Court held that 22 federal habeas review of a parole denial is limited to the narrow question of whether a petitioner 23 has received “fair procedures.” Swarthout v. Cooke, 526 U.S. __ (2011), No. 10-333, 2011 WL 24 197627, at *2 (Jan. 24, 2011). In other words, a federal court may only review whether a 25 petitioner has received a meaningful opportunity to be heard and a statement of reasons why 26 parole was denied. Id. at **2-3 (federal due process satisfied where petitioners were “allowed to 1 Dockets.Justia.com 1 speak at their parole hearings and to contest the evidence against them, were afforded access to 2 their records in advance, and were notified as to the reasons why parole was denied”). Thus, this 3 court may not review whether the Board correctly applied California’s “some evidence” 4 standard. Id. at *2. 5 Petitioner does not allege that he was not afforded constitutionally adequate process as 6 defined in Swarthout--that is, that he was denied a meaningful opportunity to be heard or a 7 statement of reasons why the Board denied him parole. Accordingly, it is hereby 8 RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 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.” Failure to file objections 14 within the specified time may waive the right to appeal the District Court’s order. Turner v. 15 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 In any objections he elects to file, petitioner may address whether a certificate of 17 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 18 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 19 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 20 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 21 appealability to review the denial of a habeas petition challenging an administrative decision 22 such as denial of parole by the parole board). 23 DATED: December 15, 2011. 24 25 26 2