-CMK (HC) McMillan v. Swarthout, No. 2:2011cv00303 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 2/25/2011 RECOMMENDING that ptnr's 1 habeas petition be summarily dismissed. Referred to Judge John A. Mendez; Objections due w/in 14 days. (Yin, K)
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-CMK (HC) McMillan v. Swarthout Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWIN D. McMILLAN, 12 Petitioner, 13 14 No. CIV S-11-0303-JAM-CMK-P vs. FINDINGS AND RECOMMENDATIONS SWARTHOUT, 15 Respondent. 16 / 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole. Pending before the 19 court is petitioner’s petition for a writ of habeas corpus (Doc. 1). 20 Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary 21 dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any 22 exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the 23 instant case, it is plain that petitioner is not entitled to federal habeas relief. Reversing the Ninth 24 Circuit’s decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), the United 25 /// 26 /// 1 Dockets.Justia.com 1 States Supreme Court recently observed: Whatever liberty interest exists [in parole] is, of course, a state interest. There is no right under the Federal Constitution to be conditionally released [on parole] before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. Id. at 7. When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication – and federal courts will review the application of those constitutionally required procedures. . . . 2 3 4 5 6 Swarthout v. Cooke, 562 U.S. ___, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam) (citing Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 7 (1979)) (emphasis in original). 7 8 The Court held: 9 15 . . . In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California’s received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. 442 U.S. at 16. “The Constitution,” we held, “does not require more.” Ibid. Cooke and Clay received at least this amount of process: They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied. (citations omitted). That should have been the beginning and the end of the federal habeas courts’ inquiry into whether Cook and Clay received due process. . . . 16 Id. 10 11 12 13 14 17 The Court added that “[n]o opinion of ours supports converting California’s ‘some evidence’ rule 18 into a substantive federal requirement” and “. . . it is no federal concern . . . whether California’s 19 ‘some evidence’ rule of judicial review (a procedure beyond what the Constitution demands) was 20 correctly applied” because “a ‘mere error of state law’ is not a denial of due process.” Id. (citing 21 Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)). Thus, in cases challenging the denial of parole, 22 the only issue subject to federal habeas review is whether the inmate received the procedural due 23 process protections of notice and an opportunity to be heard. There is no other clearly 24 established federal constitutional right in the context of parole. 25 /// 26 /// 2 1 Here, to the extent petitioner claims that the decision to deny parole was not based 2 on “some evidence” or otherwise failed to satisfy substantive due process, the claim is foreclosed 3 as a matter of law because there is no clearly established federal constitutional substantive due 4 process right in parole. To the extent petitioner claims that he was not provided the minimal 5 procedural due process protections of notice and an opportunity to be heard, the petition must be 6 denied because it is clear on the face of the petition and documents attached thereto that 7 petitioner was provided the minimum procedural protections guaranteed by the federal 8 constitution. 9 Petitioner’s references in the petition to “equal protection” and vagueness do not 10 change the court’s analysis. In essence, petitioner is challenging the Parole Board’s application 11 of California substantive parole law in his case. He claims that evidence cited by the Parole 12 Board as bases to deny parole were not accurate reflections of his case. He also claims that the 13 Parole Board and state courts misapplied the “egregious exception” to a presumption of parole 14 suitability. These claims are all substantive in nature and touch on alleged errors in the 15 application of state law. As the Court stated in Cooke, however, it is no place for the federal 16 court to review claims of state law error. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 3 1 2 Based on the foregoing, the undersigned recommends that petitioner’s petition for a writ of habeas corpus (Doc. 1) be summarily dismissed. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court. Responses to objections shall be filed within 14 days after service of 7 objections. Failure to file objections within the specified time may waive the right to appeal. 8 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 12 DATED: February 25, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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