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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARK JAMES LYON,

) NO. CV 17-1963-SVW(E)
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Petitioner,
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v.
) REPORT AND RECOMMENDATION OF
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R. NDOH, Warden,
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
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______________________________)

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This Report and Recommendation is submitted to the Honorable

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Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C.

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section 636 and General Order 05-07 of the United States District

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Court for the Central District of California.

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PROCEEDINGS

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Petitioner, a state prisoner seeking parole, filed a “Petition

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for Writ of Habeas Corpus By a Person in State Custody” on March 13,

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2017.

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of Petitioner’s December 10, 2015 hearing before the Board of Parole

Among the attachments to the Petition is a transcript (“TR.”)

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Hearings (“Board”).1

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(TR. at 101-13).

The Board found Petitioner unsuitable for parole

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Respondent filed a “Motion to Dismiss” on June 12, 2017.

The

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Motion to Dismiss asserts that Petitioner’s claims “are not cognizable

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for federal habeas corpus relief.”

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Petitioner filed a “Traverse, etc.” on June 28, 2017.

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BACKGROUND

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In 1987, a jury found Petitioner guilty of first degree murder

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(Petition at 2).

Petitioner received a prison sentence of 25 years to

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life plus two years for a firearm enhancement (id.).

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The basic outline of Petitioner’s crime is not in dispute.

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Before walking to the door of his neighbor’s house, Petitioner armed

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himself with a .44 caliber revolver, a knife, brass knuckles, and a

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ski mask (TR. at 40-42, 49-56, 89, 91-92).

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outside the house, Petitioner shot the neighbor twice in the chest,

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stabbed the neighbor multiple times and then stuffed the neighbor’s

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lifeless body into one of the neighbor’s garbage cans (id.).

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///

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///

When the neighbor came

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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.
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In 2010, the Board found Petitioner unsuitable for parole.

See

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Lyon v. De La Jour, CV 12-7671-ABC(E).

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relief from this Court, arguing, inter alia, Petitioner had been

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denied a fair hearing by an unbiased tribunal.

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entered January 10, 2013, this Court rejected all of Petitioner’s

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arguments on the merits.

Petitioner then sought habeas

See id.

By Judgment

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In 2015, the Board conducted another parole hearing, at which
Petitioner appeared with counsel (TR.).

During the hearing,

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Petitioner answered the Board’s questions, discussed the crime and

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other relevant factors, discussed the evidence (including evidence

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Petitioner had presented), and made arguments in favor of parole, both

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through counsel and on his own behalf (TR. 1-99).

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decided Petitioner was unsuitable for parole, and the Board explained

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its reasons for the decision (TR. 100-13).

The Board again

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In the present case, Petitioner again alleges a host of

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challenges to the fairness of the proceeding before the Board.

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Petition; “Traverse, etc.”

See

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APPLICABLE LAW

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Federal habeas corpus relief may be granted “only on the ground

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that [Petitioner] is in custody in violation of the Constitution or

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laws or treaties of the United States.”

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Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc) (in

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conducting habeas review, a court may determine the issue of whether

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the petition satisfies section 2254(a) prior to, or in lieu of,
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28 U.S.C. § 2254(a); see

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applying the standard of review set forth in section 2254(d)).

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“There is no constitutional or inherent right of a convicted

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person to be conditionally released before the expiration of a

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valid sentence.”

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Correctional Complex, 442 U.S. 1, 7 (1979) (“Greenholtz”).

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instances, however, state statutes may create liberty interests in

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parole release entitled to protection under the federal Due Process

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Clause.

Greenholtz v. Inmates of Nebraska Penal and
In some

See Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987);

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Greenholtz, 442 U.S. at 12.

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California’s statutory provisions governing parole create such a

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liberty interest.

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2011).2

The Ninth Circuit has held that

Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir.

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The California Supreme Court has held, as a matter of state law,

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that “some evidence” must exist to support a parole denial.

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Lawrence, 44 Cal. 4th 1181, 1212, 82 Cal. Rptr. 3d 169, 190 P.3d 535

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(2008).

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Court rejected the contention that the federal Due Process Clause

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contains a guarantee of evidentiary sufficiency with respect to a

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parole determination.

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opinion of ours supports converting California’s ‘some evidence’ rule

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into a substantive federal requirement.”); see also Miller v. Oregon

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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

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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).
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2011) (issue is not whether Board’s parole denial was “substantively

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reasonable,” or whether the Board correctly applied state parole

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standards, but simply was “whether the state provided Miller with the

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minimum procedural due process outlined in [Swarthout v.] Cooke”).

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“In the context of parole, . . . the procedures required are

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minimal.”

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that the State furnish a parole applicant with an opportunity to be

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heard and a statement of reasons for a denial of parole.

Greenholtz,

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442 U.S. at 16; see Swarthout v. Cooke, 562 U.S. at 220.

“The

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Constitution does not require more.”

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accord Swarthout v. Cooke, 562 U.S. at 220 (citation omitted); see

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also Roberts v. Hartley, 640 F.3d at 1046 (“there is no substantive

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due process right created by the California parole scheme”).

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parole context, then, “[d]ue process is satisfied as long as the state

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provides an inmate seeking parole with ‘an opportunity to be heard and

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. . . a statement of the reasons why parole was denied.’”

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Hartley, 640 F.3d at 1046 (quoting Swarthout v. Cooke, 562 U.S. at

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220).

Swarthout v. Cooke, 562 U.S. at 220.

Due Process requires

Greenholtz, 442 U.S. at 16;

In the

Roberts v.

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DISCUSSION

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Contrary to Petitioner’s arguments, Petitioner plainly received

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all the process that was due during the 2015 hearing before the Board.

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He was afforded the opportunity to be heard, and he extensively

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availed himself of that opportunity.

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counsel and on his own behalf.

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Board explained the reasons for that decision.

He argued the matter through

After the Board made its decision, the

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Such procedures are

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clearly “sufficient to satisfy the Due Process Clause.”

Roberts v.

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Hartley, 640 F.3d at 1046 (citing Swarthout v. Cooke, 562 U.S. at

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220).

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Petitioner’s conclusory allegations that he supposedly was “denied the

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right to speak and present documents.”

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and the Board expressly considered numerous documents presented by

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Petitioner.

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further only when Petitioner attempted to continue to speak after the

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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

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Petitioner alleges that the Board mischaracterized evidence,

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misplaced emphases and erroneously disbelieved certain aspects of

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Petitioner’s testimony.

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characterize these allegations as implicating federal due process, the

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allegations implicate only the sufficiency of the evidence to support

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the decision of the Board.

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guarantee evidentiary sufficiency with respect to the decision of the

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Board.

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whether the Board erred in its characterizations, emphases or factual

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findings (including credibility findings), federal habeas relief is

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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.

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As Petitioner previously argued in Lyon v. De La Jour, CV 12-

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7671-ABC(E), Petitioner appears to argue that the Board was not

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impartial.

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While a prisoner is entitled to have his or her parole application

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considered by a “neutral and detached body” that is “free from bias or

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prejudice,” O’Bremski v. Maass, 915 F.2d 418, 422 (9th Cir. 1990),

As in the prior case, Petitioner’s argument is meritless.

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cert. denied, 498 U.S. 1096 (1991), administrative adjudicators are

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presumed to act with honesty and integrity.

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School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 496-97

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(1976); Withrow v. Larkin, 421 U.S. 35, 47 (1975).

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presumption, a petitioner alleging bias “must show that the

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adjudicator has prejudged or reasonably appears to have prejudged, an

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issue.”

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quotations omitted).

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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.

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actual bias on the part of the adjudicator.”

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petitioner may show that “the adjudicator’s pecuniary or personal

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interest in the outcome of the proceedings . . . create[d] an

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appearance of partiality that violates due process. . . .”

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Petitioner has not made either showing.

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the Board reviewed the evidence, listened to the presentations of

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Petitioner and his counsel, and rendered an individualized

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determination of Petitioner’s unsuitability for parole.

Id.

Second, a

Id.

The record demonstrates that

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Petitioner suggests that Respondent’s asserted failure to contest

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facts alleged in the Petition should compel the Court to accept the

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truth of the facts alleged (“Traverse, etc.” at 2).

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suggestion must be rejected.

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an allegation in the Petition does not compel the Court to accept the

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truth of that allegation.

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Cir. 1990).

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allegation that is conclusory or contradicted by a document attached

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to the pleading.

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(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)

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must contain sufficient factual allegations “to state a claim to

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relief that is plausible on its face”); Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir.), amended, 275 F.3d 1187 (9th

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Cir. 2001) (court need not accept as true factual allegations

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contradicted by documents attached to the pleading).

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allegations that he was deprived of procedural due process are

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conclusory and are contradicted by the transcript attached to the

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Petition.

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Petition would be an idle act.

Petitioner’s

For the latter reason, a grant of leave to amend the

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RECOMMENDATION

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For the reasons discussed above, IT IS RECOMMENDED that the Court

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issue an order:

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Recommendation (2) granting Respondent’s Motion to Dismiss; and

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(3) denying and dismissing the Petition with prejudice.3

(1) accepting and adopting this Report and

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DATED:

July 21, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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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).
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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report