(HC) Dunaway v. Haviland, No. 2:2010cv02140 - Document 16 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/25/2011 RECOMMENDING that the 1 petition be denied. Referred to Judge Garland E. Burrell, Jr.; Objections due w/in 14 days. (Yin, K)

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(HC) Dunaway v. Haviland Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHRISTOPHER DUNAWAY, 11 12 Petitioner, No. CIV S-10-2140 GEB GGH P vs. 13 J.W. HAVILAND, Warden, 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 2009 decision by the California 18 Board of Parole Hearings (BPH) finding him unsuitable for parole. 19 On February 2, 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. ___, 23 131 S. Ct. 859, 861 (2011).1 24 The parties have timely filed briefing, yet for the reasons set forth in the prior 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, and notwithstanding petitioner’s argument, there is no federal due process requirement for 2 a “some evidence” review, thus the federal courts are precluded from a review of the state court’s 3 application of its “some evidence” standard.2 The gravamen of the petition in this case is based 4 on alleged violation of California’s “some evidence” requirement. This court’s review of the 5 BPH hearing transcript, however, confirms that petitioner received all the process that was due in 6 having been “allowed an opportunity to be heard” and “provided a statement of the reasons why 7 parole was denied.” Swarthout, at 862; Petition, pp. 34-174; Answer, Exhibit 1(a), pp. docket 8 #11-1, pp. 31-90; Ex. 1(b), pp. 2-81. Therefore, the petition should be denied. 9 Accordingly, IT IS HEREBY RECOMMENDED that the petition be denied. 10 If petitioner files objections, he shall also address if a certificate of appealability 11 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 12 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 13 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 14 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 17 days after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 20 shall be served and filed within fourteen days after service of the objections. The parties are 21 \\\\\ 22 2 23 24 25 26 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. 2 1 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: March 25, 2011 4 /s/ Gregory G. Hollows ___________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 5 6 7 GGH:009 duna2140.fr 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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