-GGH (HC) Gary v. Hill, No. 2:2011cv01769 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 08/23/11 recommending that this petition be dismissed. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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-GGH (HC) Gary v. Hill Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GLENN GARY, Petitioner, FINDINGS AND RECOMMENDATIONS vs. 12 13 No. CIV S-11-1769 GEB GGH P Respondent. 11 RICK HILL, 14 / 15 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas 16 17 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision by the California Board 18 of Parole Hearings (BPH) finding him unsuitable for parole. 19 On January 24, 2011, the United States Supreme Court in a per curiam decision 20 found that the Ninth Circuit erred in commanding a federal review of the state’s application of 21 state law in applying the “some evidence” standard in the parole eligibility habeas context. 22 Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 861 (2011). Quoting, inter alia, Estelle v. 23 McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed that “‘federal habeas corpus 24 relief does not lie for errors of state law.’” Id. While the high court found that the Ninth 25 Circuit’s holding that California law does create a liberty interest in parole was “a reasonable 26 //// 1 Dockets.Justia.com 1 application of our cases” (while explicitly not reviewing that holding),1 the Supreme Court 2 stated: 3 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. 4 5 6 Swarthout v. Cooke, at 862. Citing Greenholtz,2 the Supreme Court noted it had found under another state’s 7 8 similar parole statute that a prisoner had “received adequate process” when “allowed an 9 opportunity to be heard” and “provided a statement of the reasons why parole was denied.” 10 Swarthout v. Cooke, at 862. Noting their holding therein that “[t]he Constitution [] does not 11 require more,” the justices in the instances before them, found the prisoners had “received at least 12 this amount of process: They were allowed to speak at their parole hearings and to contest the 13 evidence against them, were afforded access to their records in advance, and were notified as to 14 the reasons why parole was denied.” Id. 15 The Supreme Court was emphatic in asserting “[t]hat should have been the 16 beginning and the end of the federal habeas courts’ inquiry....” Swarthout v. Cooke, at 862. “It 17 will not do to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty 18 interest....” Id., at 863. “No opinion of ours supports converting California’s “some evidence” 19 20 21 22 23 24 25 26 1 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 rule into a substantive federal requirement.” Id., at 862. The Ninth Circuit recently noted that in 2 light of Swarthout v. Cooke, certain Ninth Circuit jurisprudence had been reversed and “there is 3 no substantive due process right created by California’s parole scheme.” Roberts v. Hartley, 640 4 F.3d 1042, 1046 (9th Cir. 2011). Thus, there is no federal due process requirement for a “some 5 evidence” review and federal courts are precluded from review of the state court’s application of 6 its “some evidence” standard.3 Therefore, all claims related to the “some evidence” standard 7 should be dismissed. Petitioner variously phrases his claims, but the first two of three claims 8 relate to the substantive decision of the Board, and not the minimum procedural due process 9 discussed in Swarthout. As such, the claims cannot go forward. 10 Petitioner also raises an ex post facto claim (Claim 3) regarding Proposition 9 that 11 changed California Penal Code § 3041.5(b)(2) which resulted in sometimes less-frequent parole 12 hearings for inmates who have served enough of their sentence to be at least eligible for parole. 13 This claim is not properly brought in habeas petition and petitioner is part of the class action, 14 Gilman v. Fisher, CIV-S-05-0830 LKK GGH, that is challenging Proposition 9. Therefore his 15 claim should be dismissed without prejudice.4 16 17 18 19 20 3 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. 21 4 22 23 24 25 26 A member of a class action seeking equitable relief cannot raise those same claims in a separate equitable action. Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979). See also McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991) (“Individual suits for injunctive relief from alleged unconstitutional prison conditions cannot be brought where there is an existing class action. To permit them would allow interference with the ongoing class action.”); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (“To allow individual suits would interfere with the orderly administration of the class action and risk inconsistent adjudication.”). Indeed, “[a] district court has inherent power to choose among its broad arsenal of remedies when confronted with situations where, as here, continued litigation of a matter would create undue hardship on the litigating parties, or would improvidently circumscribe the actions of another 3 1 A 2 IT IS HEREBY RECOMMENDED that this petition be dismissed. 3 If petitioner files objections, he shall also address if a certificate of appealability 4 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 5 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 6 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 7 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 8 9 These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 10 days after being served with these findings and recommendations, petitioner may file written 11 objections with the court. Such a document should be captioned “Objections to Magistrate 12 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 13 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 14 Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: August 23, 2011 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 16 17 GGH: AB 18 gary1769.parole.scrnII 19 20 21 22 23 24 25 26 court handling a prior certified action.” Crawford, 599 F.2d at 892 (quoting Tate v. Werner, 68 F.R.D. 513, 520 (E.D. Pa 1975). Moreover, “increasing calender congestion in the federal courts makes it imperative to avoid concurrent litigation in more than one forum whenever consistent with the rights of the parties.” Finally, it makes little sense to have the ex post facto issue decided in habeas as the standard of review is AEDPA reasonableness, but in a civil rights action the issue would receive de novo review. 4
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