-GGH (HC) Bello v. Swarthout, No. 2:2011cv00564 - Document 5 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/8/11 ORDERING that 2 Motion to Proceed IFP is GRANTED; and a district judge be assigned to this case; It is RECOMMENDED that the 1 Petition for Writ of Habeas Corpus be dismissed. Randomly assigned and referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days.(Dillon, M)
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-GGH (HC) Bello v. Swarthout Doc. 5 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ALEJANDRO BELLO, Petitioner, 11 12 13 14 No. CIV S-11-0564 GGH vs. GARY SWARTHOUT, Respondent. ORDER AND FINDINGS AND RECOMMENDATIONS 15 16 17 / Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the September 2009 decision by the 19 California Board of Parole Hearings (BPH) finding him unsuitable for parole. 20 21 Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 22 On January 24, 2011, the United States Supreme Court in a per curiam decision 23 found that the Ninth Circuit erred in commanding a federal review of the state’s application of 24 state law in applying the “some evidence” standard in the parole eligibility habeas context. 25 Swarthout v. Cooke, 502 U.S. ___, ___ S. Ct. ___, 2011 WL 197627 *2 (Jan. 24, 2011). 26 Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed 1 Dockets.Justia.com 1 that “‘federal habeas corpus relief does not lie for errors of state law.’” Id. While the high court 2 found that the Ninth Circuit’s holding that California law does create a liberty interest in parole 3 was “a reasonable application of our cases” (while explicitly not reviewing that holding),1 the 4 Supreme Court stated: 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. In the context of parole, we have held that the procedures required are minimal. 5 6 7 8 Swarthout v. Cooke, at *2. Citing Greenholtz,2 the Supreme Court noted it had found under another state’s 9 10 similar parole statute that a prisoner had “received adequate process” when “allowed an 11 opportunity to be heard” and “provided a statement of the reasons why parole was denied.” 12 Swarthout, at *2. Noting their holding therein that “[t]he Constitution [] does not require more,” 13 the justices in the instances before them, found the prisoners had “received at least this amount of 14 process: They were allowed to speak at their parole hearings and to contest the evidence against 15 them, were afforded access to their records in advance, and were notified as to the reasons why 16 parole was denied.” Id. The Supreme Court was emphatic in asserting “[t]hat should have been the 17 18 beginning and the end of the federal habeas courts’ inquiry....” Swarthout, at *3. “It will not do 19 to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty interest....” Id. 20 1 21 22 23 24 25 26 While not specifically overruling Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), the Supreme Court instead referenced Pearson v. Muntz, 606 F.3d 606 (9th Cir. 2010), which further explained Hayward. Thus, the Supreme Court’s decision in Swarthout, essentially overruled the general premise of Hayward. When circuit authority is overruled by the Supreme Court, a district court is no longer bound by that authority, and need not wait until the authority is also expressly overruled. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). Furthermore, “circuit precedent, authoritative at the time it was issued, can be effectively overruled by subsequent Supreme Court decisions that ‘are closely on point,’ even though those decisions do not expressly overrule the prior circuit precedent.” Miller, 335 F.3d at 899 (quoting Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)). Therefore, this court is not bound by Hayward. 2 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). 2 1 “No opinion of ours supports converting California’s “some evidence” rule into a substantive 2 federal requirement.” Id. Thus, it appears there is no federal due process requirement for a 3 “some evidence” review and it also appears that federal courts are precluded from review of the 4 state court’s application of its “some evidence” standard. Therefore, this case should be 5 dismissed. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. A district judge be assigned to this case; and 8 2. Petitioner is granted leave to proceed in forma pauperis. 9 IT IS HEREBY RECOMMENDED that this petition be dismissed. If petitioner files objections, he shall also address if a certificate of appealability 10 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). These findings and recommendations are submitted to the United States District 15 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 advised that failure to file objections within the specified time may waive the right to appeal the 22 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: March 8, 2011 /s/ Gregory G. Hollows ___________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 24 25 GGH:014 26 bell0564.parolescrn 3
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