Nava v. Swarthout, No. 2:2012cv00037 - Document 6 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/3/2012 RECOMMENDING that this action be summarily dismissed. Referred to Judge Garland E. Burrell, Jr.; Objections due within 21 days. (Yin, K)
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Nava v. Swarthout Doc. 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSE A.V. NAVA, 11 12 13 Petitioner, vs. GARY SWARTHOUT, 14 Respondent. 15 16 No. 2:12-cv-0037 GEB KJN P FINDINGS AND RECOMMENDATIONS / I. Introduction 17 Petitioner, a state prisoner proceeding without counsel, has filed an application for 18 a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. 19 Petitioner claims that his federal constitutional right to due process was violated by a 2010 20 decision of the California Board of Parole Hearings (hereafter “the Board”) to deny him a parole 21 date. Petitioner’s claims are based on alleged violations of petitioner’s due process rights under 22 the Fourteenth Amendment. For the reasons stated below, the court recommends that the petition 23 be dismissed. 24 II. Standards 25 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must conduct 26 a preliminary review of § 2254 habeas petitions and dismiss any petition where it plainly appears 1 1 that petitioner is not entitled to relief in this court. Rule 4 of the Rules Governing Section 2254 2 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any 3 attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4, 4 Rules Governing Section 2254 Cases; see also Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 5 1983) (Rule 4 “explicitly allows a district court to dismiss summarily the petition on the merits 6 when no claim for relief is stated”). However, a petition for writ of habeas corpus should not be 7 dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded 8 were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 9 III. Due Process Claims 10 The Due Process Clause of the Fourteenth Amendment prohibits state action that 11 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 12 due process violation must first demonstrate that he was deprived of a liberty or property interest 13 protected by the Due Process Clause and then show that the procedures attendant upon the 14 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 15 490 U.S. 454, 459-60 (1989). 16 A protected liberty interest may arise from either the Due Process Clause of the 17 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 18 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 19 221 (2005) (citations omitted). The United States Constitution does not, of its own force, create 20 a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 21 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no 22 constitutional or inherent right of a convicted person to be conditionally released before the 23 expiration of a valid sentence.”). However, “a state’s statutory scheme, if it uses mandatory 24 language, ‘creates a presumption that parole release will be granted’ when or unless certain 25 designated findings are made, and thereby gives rise to a constitutional liberty interest.” 26 Greenholtz, 442 U.S. at 12; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a 2 1 state’s use of mandatory language (“shall”) creates a presumption that parole release will be 2 granted when the designated findings are made.). 3 California’s parole statutes give rise to a liberty interest in parole protected by the 4 federal due process clause. Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011). In California, a 5 prisoner is entitled to release on parole unless there is “some evidence” of his or her current 6 dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 7 Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that 8 “[n]o opinion of [theirs] supports converting California’s ‘some evidence’ rule into a substantive 9 federal requirement.” Swarthout, 131 S. Ct. at 864. In other words, the Court specifically 10 rejected the notion that there can be a valid claim under the Fourteenth Amendment for 11 insufficiency of evidence presented at a parole proceeding. Id. Rather, the protection afforded 12 by the federal due process clause to California parole decisions consists solely of the “minimal” 13 procedural requirements set forth in Greenholtz, specifically “an opportunity to be heard and . . . 14 a statement of the reasons why parole was denied.” Swarthout, 131 S. Ct. at 863-64. 15 Here, the record reflects that petitioner was present at the November 23, 2010 16 parole hearing, that he participated in the hearing, and that he was provided with the reasons for 17 the Board’s decision to deny parole. (Dkt. No. 1 at 61-127.) According to the United States 18 Supreme Court, the federal due process clause requires no more.1 19 V. Conclusion 20 21 For all of the above reasons, IT IS HEREBY RECOMMENDED that this action be summarily dismissed. Rule 4, Rules Governing Section 2254 Cases. 22 These findings and recommendations are submitted to the United States District 23 24 25 26 1 “The only federal right at issue in the parole context is procedural, and the only proper inquiry is what process the inmate received, not whether the state court decided the case correctly. Stuart v. Carey, 2011 WL 2709255 (9th Cir. 2011), citing Swarthout, 131 S. Ct. at 863. Petitioner cannot obtain more process by attempting to characterize his claims in a different way. 3 1 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 2 one days after being served with these findings and recommendations, any party may file written 3 objections with the court and serve a copy on all parties. Such a document should be captioned 4 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files 5 objections, he shall also address whether a certificate of appealability should issue and, if so, why 6 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 7 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 8 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 9 service of the objections. The parties are advised that failure to file objections within the 10 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 11 F.2d 1153 (9th Cir. 1991). 12 DATED: February 3, 2012 13 14 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 15 16 nava0037.bph.156 17 18 19 20 21 22 23 24 25 26 4