Gustavo Gomez v. California Board of Parole

Filing 10

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY by Judge Dolly M. Gee 1 . IT IS HEREBY ORDERED that: (1) the Petition is dismissed with prejudice; and (2) a certificate of appealability is denied. IT IS SO ORDERED. Case Terminated. Made JS-6. (san)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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GUSTAVO GOMEZ,
Petitioner,

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v.

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CALIFORNIA BOARD OF PAROLE,
Respondent.

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Case No. CV 17-4087-DMG (JEM)
ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE
OF APPEALABILITY

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On April 11, 2017, in the United States District Court for the Southern District of
Florida, Gustavo Gomez (“Petitioner”), filed a petition for writ of habeas corpus ("Petition"),
in which he challenges the 2016 decision of the California Board of Parole Hearings
(“Board”) finding him unsuitable for parole. (See Petition at 6-22.)1 On May 31, 2017, the
case was transferred to this Court.
DISCUSSION

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This Court has a duty to screen habeas corpus petitions. See Rules Governing §
2254 Cases in the United States District Courts, Rule 4 Advisory Committee Notes. Rule 4
requires a district court to examine a habeas corpus petition, and if it plainly appears from
the face of the petition and any annexed exhibits that the petitioner is not entitled to relief,
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The Court refers to the pages of the Petition as numbered by the CM/ECF system.

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the judge shall make an order for summary dismissal of the petition. Id.; see also Local

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Rule 72-3.2.

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Summary dismissal is appropriate in this case because the Supreme Court's decision

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in Swarthout v. Cooke, 562 U.S. 216 (2011), precludes habeas relief on Petitioner's claims.

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In Swarthout, the Supreme Court recognized that Board decisions are reviewed by

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California state courts under a standard of “whether ‘some evidence’ supports the

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conclusion that the inmate is unsuitable for parole because he or she currently is

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dangerous.” Id. at 217 (quoting In re Lawrence, 44 Cal.4th 1181, 1191 (2008)) (additional

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citation omitted). The Court also acknowledged as reasonable the Ninth Circuit holding that

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California law governing parole creates a cognizable liberty interest for purposes of

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analyzing a federal due process claim. Id. at 219-20 (citing Cooke v. Solis, 606 F.3d 1206,

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1213 (9th Cir. 2010)). However, the Court emphasized that any such interest is “a state

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interest created by California law”; there is no corresponding substantive right under the

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United States Constitution to conditional release before expiration of a valid sentence. Id. at

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220 (The Court also stated: “No opinion of ours supports converting California's ‘some

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evidence’ rule into a substantive federal requirement.”).

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Therefore, regardless of the standard of judicial review applied by California state

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courts, the proper scope of federal habeas review in the context of a parole decision

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concerns only the constitutional question of whether fair and adequate procedures were

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employed for protection of the prisoner's state-created liberty interest. Id. (“When . . . a

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State creates a liberty interest, the Due Process Clause requires fair procedures for its

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vindication – and federal courts will review the application of those constitutionally required

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procedures.”); see also id. at 222 (“Because the only federal right at issue is procedural, the

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relevant inquiry is what process [the petitioner] received, not whether the state court

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decided the case correctly.”).

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The Court reaffirmed that “[i]n the context of parole, we have held that the

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procedures required [by the Constitution] are minimal.” Id. at 220; see also Greenholtz v.

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Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 16 (1979) (adequate
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process consisted of an opportunity to be heard and a statement of reasons for parole

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denial). The Supreme Court determined in Greenholtz “that a prisoner subject to a parole

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statute similar to California’s received adequate process when he was allowed an

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opportunity to be heard and was provided a statement of the reasons why parole was

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denied.” Swarthout, 562 U.S. at 220 (citing Greenholtz, 442 U.S. at 16). “The Constitution

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does not require more.” Greenholtz, 442 U.S. at 16. Any further inquiry into the actual

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merits of a parole decision, and specifically into the question of whether the “some

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evidence” standard regarding present dangerousness was satisfied, would involve a

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question of state law that is not cognizable on federal habeas review. Swarthout, 562 U.S.

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at 221 (“[I]t is no federal concern here whether California's ‘some evidence’ rule of judicial

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review . . . was correctly applied”); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991);

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Engle v. Isaac, 456 U.S. 107, 121 n. 21 (1982).

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Following Swarthout, Petitioner may not obtain habeas relief on the grounds asserted

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in his Petition, which essentially challenge the quantum of evidence supporting the Board's

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2016 decision denying him parole. The Petition and accompanying exhibits indicate that

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Petitioner testified, presented beneficial evidence, and received a written statement of

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reasons for the Board's decision. (See Petition at 6-22, Exs. A, E.) Because Petitioner has

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not shown that the procedures followed by the Board were constitutionally deficient, there is

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no basis for federal habeas relief. See Swarthout, 562 U.S. at 220-21; see also Greenholtz,

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442 U.S. at 16. The Petition, therefore, should be summarily dismissed with prejudice.

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CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must

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issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant.”

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The Court has found that the Petition should be dismissed with prejudice. For the

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reasons stated above, the Court concludes that Petitioner has not made a substantial

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showing of the denial of a constitutional right, as is required to support the issuance of a

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certificate of appealability. See 28 U.S.C. § 2253(c)(2).
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ORDER

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IT IS HEREBY ORDERED that: (1) the Petition is dismissed with prejudice; and

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(2) a certificate of appealability is denied.
IT IS SO ORDERED.

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DATED: June 22, 2017
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE

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