-GGH (HC) Thompson v. Dickinson, No. 2:2011cv02341 - Document 8 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/26/11 ORDERING that a district judge be assigned to this case. IT IS RECOMMENDED that this petition be dismissed re 1 Petition for Writ of Habeas Corpus filed by Keith A. Thompson. Objections to F&R due within 14 days. (Matson, R)
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-GGH (HC) Thompson v. Dickinson Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEITH A. THOMPSON, 11 Petitioner, 12 13 No. CIV S-11-2341 GGH P vs. K. DICKINSON, Warden, et al., 14 ORDER & FINDINGS AND RECOMMENDATIONS Respondent. 15 / 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254.1 Petitioner was convicted of murder in the first degree in 18 Monterey County Superior Court in 1991 and sentenced to a term of 25 years to life. Petition, p. 19 2. Although petitioner does not provide the precise date of the denial, petitioner is evidently 20 challenging a recent decision by the California Board of Parole Hearings (BPH) finding him 21 unsuitable for parole. Petitioner sets forth two grounds for his challenge, contending that his 22 Fifth and Fourteenth Amendment rights have been violated by 1) the evidence of his psych report 23 clearly stating that he was a low risk to public safety having been disregarded; 2) the BPH’s 24 25 26 1 The petition was filed in the Northern District, on August 1, 2011, and was transferred into this court as of September 6, 2011, as petitioner is currently housed at the California Medical Facility in Vacaville. 1 Dockets.Justia.com 1 reliance on the unchangeable commitment offense as the reason for the denial. Petition, pp. 6-7. 2 On January 24, 2011, the United States Supreme Court in a per curiam decision 3 found that the Ninth Circuit erred in commanding a federal review of the state’s application of 4 state law in applying the “some evidence” standard in the parole eligibility habeas context. 5 Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 861 (2011). Quoting, inter alia, Estelle v. 6 McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed that “‘federal habeas corpus 7 relief does not lie for errors of state law.’” Id. While the high court found that the Ninth 8 Circuit’s holding that California law does create a liberty interest in parole was “a reasonable 9 application of our cases” (while explicitly not reviewing that holding),2 the Supreme Court 10 stated: 11 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. 12 13 14 Swarthout v. Cooke, at 862. Citing Greenholtz,3 the Supreme Court noted it had found under another state’s 15 16 similar parole statute that a prisoner had “received adequate process” when “allowed an 17 opportunity to be heard” and “provided a statement of the reasons why parole was denied.” 18 Swarthout v. Cooke, at 862. Noting their holding therein that “[t]he Constitution [] does not 19 20 21 22 23 24 25 26 2 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. 3 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). 2 1 require more,” the justices in the instances before them, found the prisoners had “received at least 2 this amount of process: They were allowed to speak at their parole hearings and to contest the 3 evidence against them, were afforded access to their records in advance, and were notified as to 4 the reasons why parole was denied.” Id. 5 The Supreme Court was emphatic in asserting “[t]hat should have been the 6 beginning and the end of the federal habeas courts’ inquiry....” Swarthout v. Cooke, at 862. “It 7 will not do to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty 8 interest....” Id., at 863. “No opinion of ours supports converting California’s “some evidence” 9 rule into a substantive federal requirement.” Id., at 862. Thus, it appears there is no federal due 10 process requirement for a “some evidence” review and it also appears that federal courts are 11 precluded from review of the state court’s application of its “some evidence” standard.4 12 Petitioner makes no claim that he was deprived of the opportunity to be heard or that he did not 13 receive a statement of the reasons parole was denied. Therefore, this case should be dismissed. 14 Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this 15 case. 16 IT IS HEREBY RECOMMENDED that this petition be dismissed. 17 If petitioner files objections, he shall also address if a certificate of appealability 18 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 19 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 20 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 21 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 22 4 23 24 25 26 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. 3 1 These findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 3 days after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 6 shall be served and filed within fourteen days after service of the objections. The parties are 7 advised that failure to file objections within the specified time may waive the right to appeal the 8 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 DATED: September 26, 2011 10 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 11 GGH:009 12 thom2341.scr 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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