Mark James Lyon v. R. Ndoh

Filing 19

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Magistrate Judge Charles F. Eick. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Respondent's Motion to Dismiss is granted and Judgment shall be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 Report and Recommendation) (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARK JAMES LYON, ) NO. CV 17-1963-SVW(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) R. NDOH, Warden, ) UNITED STATES MAGISTRATE JUDGE ) Respondent. ) ______________________________) 17 18 This Report and Recommendation is submitted to the Honorable 19 Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. 20 section 636 and General Order 05-07 of the United States District 21 Court for the Central District of California. 22 23 PROCEEDINGS 24 25 Petitioner, a state prisoner seeking parole, filed a “Petition 26 for Writ of Habeas Corpus By a Person in State Custody” on March 13, 27 2017. 28 of Petitioner’s December 10, 2015 hearing before the Board of Parole Among the attachments to the Petition is a transcript (“TR.”) 1 Hearings (“Board”).1 2 (TR. at 101-13). The Board found Petitioner unsuitable for parole 3 4 Respondent filed a “Motion to Dismiss” on June 12, 2017. The 5 Motion to Dismiss asserts that Petitioner’s claims “are not cognizable 6 for federal habeas corpus relief.” 7 8 Petitioner filed a “Traverse, etc.” on June 28, 2017. 9 10 BACKGROUND 11 12 In 1987, a jury found Petitioner guilty of first degree murder 13 (Petition at 2). Petitioner received a prison sentence of 25 years to 14 life plus two years for a firearm enhancement (id.). 15 16 The basic outline of Petitioner’s crime is not in dispute. 17 Before walking to the door of his neighbor’s house, Petitioner armed 18 himself with a .44 caliber revolver, a knife, brass knuckles, and a 19 ski mask (TR. at 40-42, 49-56, 89, 91-92). 20 outside the house, Petitioner shot the neighbor twice in the chest, 21 stabbed the neighbor multiple times and then stuffed the neighbor’s 22 lifeless body into one of the neighbor’s garbage cans (id.). 23 /// 24 /// When the neighbor came 25 26 27 28 1 Although one of the Board members stated that the date of the hearing was December 11, 2015, the transcript indicates that the date of the hearing was December 10, 2015. This minor date discrepancy is immaterial. 2 1 In 2010, the Board found Petitioner unsuitable for parole. See 2 Lyon v. De La Jour, CV 12-7671-ABC(E). 3 relief from this Court, arguing, inter alia, Petitioner had been 4 denied a fair hearing by an unbiased tribunal. 5 entered January 10, 2013, this Court rejected all of Petitioner’s 6 arguments on the merits. Petitioner then sought habeas See id. By Judgment 7 8 9 In 2015, the Board conducted another parole hearing, at which Petitioner appeared with counsel (TR.). During the hearing, 10 Petitioner answered the Board’s questions, discussed the crime and 11 other relevant factors, discussed the evidence (including evidence 12 Petitioner had presented), and made arguments in favor of parole, both 13 through counsel and on his own behalf (TR. 1-99). 14 decided Petitioner was unsuitable for parole, and the Board explained 15 its reasons for the decision (TR. 100-13). The Board again 16 17 In the present case, Petitioner again alleges a host of 18 challenges to the fairness of the proceeding before the Board. 19 Petition; “Traverse, etc.” See 20 21 APPLICABLE LAW 22 23 Federal habeas corpus relief may be granted “only on the ground 24 that [Petitioner] is in custody in violation of the Constitution or 25 laws or treaties of the United States.” 26 Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc) (in 27 conducting habeas review, a court may determine the issue of whether 28 the petition satisfies section 2254(a) prior to, or in lieu of, 3 28 U.S.C. § 2254(a); see 1 applying the standard of review set forth in section 2254(d)). 2 3 “There is no constitutional or inherent right of a convicted 4 person to be conditionally released before the expiration of a 5 valid sentence.” 6 Correctional Complex, 442 U.S. 1, 7 (1979) (“Greenholtz”). 7 instances, however, state statutes may create liberty interests in 8 parole release entitled to protection under the federal Due Process 9 Clause. Greenholtz v. Inmates of Nebraska Penal and In some See Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); 10 Greenholtz, 442 U.S. at 12. 11 California’s statutory provisions governing parole create such a 12 liberty interest. 13 2011).2 The Ninth Circuit has held that Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir. 14 15 The California Supreme Court has held, as a matter of state law, 16 that “some evidence” must exist to support a parole denial. 17 Lawrence, 44 Cal. 4th 1181, 1212, 82 Cal. Rptr. 3d 169, 190 P.3d 535 18 (2008). 19 Court rejected the contention that the federal Due Process Clause 20 contains a guarantee of evidentiary sufficiency with respect to a 21 parole determination. 22 opinion of ours supports converting California’s ‘some evidence’ rule 23 into a substantive federal requirement.”); see also Miller v. Oregon 24 Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 717 (9th Cir. See In re In Swarthout v. Cooke, however, the United States Supreme Swarthout v. Cooke, 562 U.S. at 220 (“No 25 26 27 28 2 In Swarthout v. Cooke, 562 U.S. 216, 220-21 (2011), the United States Supreme Court did not reach the question of whether California law creates a liberty interest in parole, but observed that the Ninth Circuit’s affirmative answer to this question “is a reasonable application of our cases” (citations omitted). 4 1 2011) (issue is not whether Board’s parole denial was “substantively 2 reasonable,” or whether the Board correctly applied state parole 3 standards, but simply was “whether the state provided Miller with the 4 minimum procedural due process outlined in [Swarthout v.] Cooke”). 5 6 “In the context of parole, . . . the procedures required are 7 minimal.” 8 that the State furnish a parole applicant with an opportunity to be 9 heard and a statement of reasons for a denial of parole. Greenholtz, 10 442 U.S. at 16; see Swarthout v. Cooke, 562 U.S. at 220. “The 11 Constitution does not require more.” 12 accord Swarthout v. Cooke, 562 U.S. at 220 (citation omitted); see 13 also Roberts v. Hartley, 640 F.3d at 1046 (“there is no substantive 14 due process right created by the California parole scheme”). 15 parole context, then, “[d]ue process is satisfied as long as the state 16 provides an inmate seeking parole with ‘an opportunity to be heard and 17 . . . a statement of the reasons why parole was denied.’” 18 Hartley, 640 F.3d at 1046 (quoting Swarthout v. Cooke, 562 U.S. at 19 220). Swarthout v. Cooke, 562 U.S. at 220. Due Process requires Greenholtz, 442 U.S. at 16; In the Roberts v. 20 21 DISCUSSION 22 23 Contrary to Petitioner’s arguments, Petitioner plainly received 24 all the process that was due during the 2015 hearing before the Board. 25 He was afforded the opportunity to be heard, and he extensively 26 availed himself of that opportunity. 27 counsel and on his own behalf. 28 Board explained the reasons for that decision. He argued the matter through After the Board made its decision, the 5 Such procedures are 1 clearly “sufficient to satisfy the Due Process Clause.” Roberts v. 2 Hartley, 640 F.3d at 1046 (citing Swarthout v. Cooke, 562 U.S. at 3 220). 4 Petitioner’s conclusory allegations that he supposedly was “denied the 5 right to speak and present documents.” 6 and the Board expressly considered numerous documents presented by 7 Petitioner. 8 further only when Petitioner attempted to continue to speak after the 9 Board already had made and explained its decision (TR. at 112-13). The transcript appended to the Petition amply refutes Petitioner spoke at length, The Board frustrated Petitioner’s efforts to speak 10 11 Petitioner alleges that the Board mischaracterized evidence, 12 misplaced emphases and erroneously disbelieved certain aspects of 13 Petitioner’s testimony. 14 characterize these allegations as implicating federal due process, the 15 allegations implicate only the sufficiency of the evidence to support 16 the decision of the Board. 17 guarantee evidentiary sufficiency with respect to the decision of the 18 Board. 19 whether the Board erred in its characterizations, emphases or factual 20 findings (including credibility findings), federal habeas relief is 21 unavailable. Notwithstanding Petitioner’s efforts to Again, federal due process does not See Swarthout v. Cooke, 562 U.S. at 220-22. Regardless of See id. 22 23 As Petitioner previously argued in Lyon v. De La Jour, CV 12- 24 7671-ABC(E), Petitioner appears to argue that the Board was not 25 impartial. 26 While a prisoner is entitled to have his or her parole application 27 considered by a “neutral and detached body” that is “free from bias or 28 prejudice,” O’Bremski v. Maass, 915 F.2d 418, 422 (9th Cir. 1990), As in the prior case, Petitioner’s argument is meritless. 6 1 cert. denied, 498 U.S. 1096 (1991), administrative adjudicators are 2 presumed to act with honesty and integrity. 3 School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 496-97 4 (1976); Withrow v. Larkin, 421 U.S. 35, 47 (1975). 5 presumption, a petitioner alleging bias “must show that the 6 adjudicator has prejudged or reasonably appears to have prejudged, an 7 issue.” 8 quotations omitted). 9 First, “the proceedings and surrounding circumstances may demonstrate See Hortonville Joint To overcome this Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995) (internal A petitioner may make this showing in two ways. 10 actual bias on the part of the adjudicator.” 11 petitioner may show that “the adjudicator’s pecuniary or personal 12 interest in the outcome of the proceedings . . . create[d] an 13 appearance of partiality that violates due process. . . .” 14 Petitioner has not made either showing. 15 the Board reviewed the evidence, listened to the presentations of 16 Petitioner and his counsel, and rendered an individualized 17 determination of Petitioner’s unsuitability for parole. Id. Second, a Id. The record demonstrates that 18 19 Petitioner suggests that Respondent’s asserted failure to contest 20 facts alleged in the Petition should compel the Court to accept the 21 truth of the facts alleged (“Traverse, etc.” at 2). 22 suggestion must be rejected. 23 an allegation in the Petition does not compel the Court to accept the 24 truth of that allegation. 25 Cir. 1990). 26 allegation that is conclusory or contradicted by a document attached 27 to the pleading. 28 (court does not presume the truth of conclusory allegations; pleading Petitioner’s Any failure by the Respondent to address See Gordon v. Duran, 895 F.2d 610, 612 (9th Moreover, the Court need not accept as true any pleaded See Ashcroft v. Iqbal, 556 U.S. 662, 678, 686 (2009) 7 1 must contain sufficient factual allegations “to state a claim to 2 relief that is plausible on its face”); Sprewell v. Golden State 3 Warriors, 266 F.3d 979, 988 (9th Cir.), amended, 275 F.3d 1187 (9th 4 Cir. 2001) (court need not accept as true factual allegations 5 contradicted by documents attached to the pleading). 6 allegations that he was deprived of procedural due process are 7 conclusory and are contradicted by the transcript attached to the 8 Petition. 9 Petition would be an idle act. Petitioner’s For the latter reason, a grant of leave to amend the 10 11 RECOMMENDATION 12 13 For the reasons discussed above, IT IS RECOMMENDED that the Court 14 issue an order: 15 Recommendation (2) granting Respondent’s Motion to Dismiss; and 16 (3) denying and dismissing the Petition with prejudice.3 (1) accepting and adopting this Report and 17 18 DATED: July 21, 2017. 19 20 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3 Petitioner’s request for the appointment of counsel is denied. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.), cert. denied, 479 U.S. 867 (1986). 8 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 If the District Judge enters judgment adverse to Petitioner, the 10 District Judge will, at the same time, issue or deny a certificate of 11 appealability. 12 and Recommendation, the parties may file written arguments regarding 13 whether a certificate of appealability should issue. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Within twenty (20) days of the filing of this Report

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