-GGH (HC) Bartholomew v. Ochoa, No. 2:2010cv03395 - Document 14 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/9/2011 RECOMMENDING that the 1 petition be denied. Referred to Judge John A. Mendez; Objections due w/in 14 days. (Yin, K)

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-GGH (HC) Bartholomew v. Ochoa Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TROY BARTHOLOMEW, No. CIV S-10-3395 JAM GGH P Petitioner, 11 12 vs. 13 TIM J. OCHOA, 14 15 16 Respondent. FINDINGS AND RECOMMENDATIONS / 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 November 2008 decision by the 18 California 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. ___, 2011 WL 197627 *2 (Jan. 24, 2011). 24 The parties have timely filed briefing, yet for the reasons set forth in the prior 25 order, it appears there is no federal due process requirement for a “some evidence” review, thus 26 the federal courts are precluded from a review of the state court’s application of its “some 1 Dockets.Justia.com 1 evidence” standard. 1 2 A review of the petition in this case demonstrates that it is entirely based on 3 alleged violation of California’s “some evidence” requirement. Therefore, the petition should be 4 denied. 5 Accordingly, IT IS HEREBY RECOMMENDED that the petition be denied. 6 If petitioner files objections, he shall also address if a certificate of appealability 7 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 8 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 9 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 10 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 13 days after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 shall be served and filed within fourteen days after service of the objections. The parties are 17 advised that failure to file objections within the specified time may waive the right to appeal the 18 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 DATED: March 9, 2011 20 21 /s/ Gregory G. Hollows ___________________________________ UNITED STATES MAGISTRATE JUDGE GGH:014 - bart3395.fr 22 1 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
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