-CMK (HC) Moore v. Hartley, No. 2:2011cv01623 - Document 7 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/24/11: Recommending that 1 Petition for Writ of Habeas be summarily dismissed. F&R are referred to United States District Judge John A. Mendez Objections to F&R due within 14 days. (Kaminski, H)

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-CMK (HC) Moore v. Hartley 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 LAPEER MOORE, 12 Petitioner, 13 14 No. CIV S-11-1623-JAM-CMK-P vs. FINDINGS AND RECOMMENDATIONS JAMES D. HARTLEY, 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 in 2009. On June 19 23, 2011, the court directed petitioner to show cause in writing within 30 days why this petition 20 should not be dismissed as duplicative of a separate petition, Moore v. Hartley, CIV-S-1101613- 21 CMK-P, challenging the same denial of parole. In his response, rather than addressing the 22 question presented in the order to show cause, petitioner argues the merits of his underlying 23 parole claim. Because this later-filed petition is duplicative of petitioner’s petition in case no. 24 CIV-S-1101613-CMK-P, it should be dismissed. 25 /// 26 /// 1 Dockets.Justia.com 1 In any event, the instant petition plainly lacks merit. Rule 4 of the Federal Rules 2 Governing Section 2254 Cases provides for summary dismissal of a habeas petition “[i]f it 3 plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 4 not entitled to relief in the district court.” In the instant case, it is plain that petitioner is not 5 entitled to federal habeas relief. Reversing the Ninth Circuit’s decision in Hayward v. Marshall, 6 603 F.3d 546 (9th Cir. 2010) (en banc), the United States Supreme Court recently observed: 7 8 9 10 11 12 13 14 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. . . . Swarthout v. Cooke, 562 U.S. ___, 131 S. Ct. 859, 862 (9th Cir. 2011) (per curiam) (citing Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 7 (1979)) (emphasis in original). The Court held: 20 . . . 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. . . . 21 Id. 15 16 17 18 19 22 The Court added that “[n]o opinion of ours supports converting California’s ‘some evidence’ rule 23 into a substantive federal requirement” and “. . . it is no federal concern . . . whether California’s 24 ‘some evidence’ rule of judicial review (a procedure beyond what the Constitution demands) was 25 correctly applied” because “a ‘mere error of state law’ is not a denial of due process.” Id. at 862- 26 63 (citing Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)). Thus, in cases challenging the denial 2 1 of parole, the only issue subject to federal habeas review is whether the inmate received the 2 procedural due process protections of notice and an opportunity to be heard. There is no other 3 clearly established federal constitutional right in the context of parole. 4 Here, to the extent petitioner claims that the decision to deny parole was not based 5 on “some evidence” or otherwise failed to satisfy substantive due process, the claim is foreclosed 6 as a matter of law because there is no clearly established federal constitutional substantive due 7 process right in parole. To the extent petitioner claims that he was not provided the minimal 8 procedural due process protections of notice and an opportunity to be heard, the petition must be 9 denied because it is clear on the face of the petition and documents attached thereto that 10 petitioner was provided the minimum procedural protections guaranteed by the federal 11 constitution. 12 13 Based on the foregoing, the undersigned recommends that petitioner’s petition for a writ of habeas corpus (Doc. 1) be summarily dismissed. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. Responses to objections shall be filed within 14 days after service of 18 objections. Failure to file objections within the specified time may waive the right to appeal. 19 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 23 DATED: August 24, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 24 25 26 3

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