-KJN (HC) Francisco Lopez v. State of California Board of Prison Terms, No. 2:2010cv03422 - Document 11 (E.D. Cal. 2011)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/31/2011 ORDERING that ptnr's 10 request to proceed IFP is GRANTED; and RECOMMENDING ptnr's application for writ of habeas corpus be denied; and this case be closed. Referred to Judge Morrison C. England, Jr.; Objections due w/in 21 days. (Yin, K)
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-KJN (HC) Francisco Lopez v. State of California Board of Prison Terms Doc. 11 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FRANCISCO H. LOPEZ, Petitioner, 11 12 No. 2:10-cv-3422 MCE KJN P vs. 13 STATE OF CALIFORNIA, BOARD 14 OF PRISON TERMS, 15 Respondents. FINDINGS AND RECOMMENDATIONS / 16 17 ORDER AND Petitioner, a state prisoner proceeding without counsel, has filed a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma 19 pauperis. 20 Examination of the request to proceed in forma pauperis reveals petitioner is 21 unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is 22 granted. 28 U.S.C. § 1915(a). 23 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must conduct a 24 preliminary review of § 2254 habeas petitions and dismiss any petition where it plainly appears 25 that petitioner is not entitled to relief in this court. 26 Petitioner challenges the fact that he was denied parole in 2009. He asserts the 1 Dockets.Justia.com 1 evidence presented at his parole hearing is not sufficient under the Due Process Clause of the 2 Fourteenth Amendment to sustain his being denied parole. 3 The Due Process Clause of the Fourteenth Amendment prohibits state action that 4 deprives a person of life, liberty, or property without due process of law. A litigant alleging a due 5 process violation must first demonstrate that he was deprived of a liberty or property interest 6 protected by the Due Process Clause and then show that the procedures attendant upon the 7 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 490 8 U.S. 454, 459-60 (1989). 9 A protected liberty interest may arise from either the Due Process Clause of the 10 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 11 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 12 (2005) (citations omitted); see also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The 13 United States Constitution does not, of its own force, create a protected liberty interest in a parole 14 date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. 15 Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or inherent right of a 16 convicted person to be conditionally released before the expiration of a valid sentence.”). 17 However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a presumption that 18 parole release will be granted’ when or unless certain designated findings are made, and thereby 19 gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12; see also Allen, 482 U.S. 20 at 376-78. 21 California’s parole statutes give rise to a liberty interest in parole protected by the 22 federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 23 197627, at *2 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless there 24 is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 120525 06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in Swarthout the 26 United States Supreme Court held that “[n]o opinion of [theirs] supports converting California’s 2 1 ‘some evidence’ rule into a substantive federal requirement.” Swarthout, 2011 WL 197627, at *3. 2 In other words, the Court specifically rejected the notion that there can be a valid claim under the 3 Fourteenth Amendment for insufficiency of evidence presented at a parole proceeding. Id. at *3. 4 Rather, the protection afforded by the federal due process clause to California parole decisions 5 consists solely of the “minimal” procedural requirements set forth in Greenholtz, specifically “an 6 opportunity to be heard and . . . a statement of the reasons why parole was denied.” Swarthout, at 7 *2-3. 8 Because petitioner fails to allege that he was denied any of the process due under 9 the Fourteenth Amendment at his 2009 parole hearing, his petition for writ of habeas corpus must 10 be denied. 11 In accordance with the above, IT IS HEREBY ORDERED that petitioner’s request 12 to proceed in forma pauperis is granted; and 13 IT IS HEREBY RECOMMENDED that: 14 1. Petitioner’s application for writ of habeas corpus be denied; and 15 2. This case be closed. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty18 one days after being served with these findings and recommendations, petitioner may file written 19 objections with the court. Such a document should be captioned “Objections to Magistrate 20 Judge’s Findings and Recommendations.” If petitioner files objections, he shall also address 21 whether a certificate of appealability should issue and, if so, why and as to which issues. A 22 certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a 23 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Petitioner is 24 //// 25 //// 26 //// 3 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: January 31, 2011 4 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 5 6 7 lope3422.156 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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