Candelario v. Hartley
Filing
12
FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition without Leave to Amend for Failure to State a Cognizable Claim and to Decline to Issue a Certificate of Appealability signed by Magistrate Judge Sheila K. Oberto on 05/03/2011. Referred to Judge Wanger; Objections to F&R due by 6/6/2011. (Flores, E)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
10
FERNANDO CANDELARIO,
11
Petitioner,
12
v.
13
JAMES D. HARTLEY,
14
Respondent.
15
)
)
)
)
)
)
)
)
)
)
)
)
1:10-cv—00252-OWW-SKO-HC
FINDINGS AND RECOMMENDATIONS
TO DISMISS THE PETITION WITHOUT
LEAVE TO AMEND FOR FAILURE TO
STATE A COGNIZABLE CLAIM (Doc. 1)
AND TO DECLINE TO ISSUE
A CERTIFICATE OF APPEALABILITY
OBJECTIONS DEADLINE:
THIRTY (30) DAYS
16
17
Petitioner is a state prisoner proceeding pro se and in
18
forma pauperis with a petition for writ of habeas corpus pursuant
19
to 28 U.S.C. § 2254.
20
Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and
21
304.
22
on February 16, 2010.
23
on May 17, 2010, and Petitioner filed a traverse on June 9, 2010.
The matter was referred to the Magistrate
Pending before the Court is the petition, which was filed
Respondent filed an answer to the petition
24
I.
25
Rule 4 of the Rules Governing § 2254 Cases in the United
26
States District Courts (Habeas Rules) requires that the Court
27
summarily dismiss a petition "[i]f it plainly appears from the
28
petition and any attached exhibits that the petitioner is not
Consideration of Dismissal of the Petition
1
1
entitled to relief in the district court....”
2
O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
3
Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).
4
2(c) requires that a petition 1) specify all grounds of relief
5
available to the Petitioner; 2) state the facts supporting each
6
ground; and 3) state the relief requested.
7
not sufficient; rather, the petition must state facts that point
8
to a real possibility of constitutional error.
9
Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at
10
420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).
11
Allegations in a petition that are vague, conclusory, or palpably
12
incredible are subject to summary dismissal.
13
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
14
Habeas Rule 4;
Habeas Rule
Notice pleading is
Rule 4, Advisory
Hendricks v.
Further, the Court may dismiss a petition for writ of habeas
15
corpus either on its own motion under Habeas Rule 4, pursuant to
16
the respondent's motion to dismiss, or after an answer to the
17
petition has been filed.
18
8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43
19
(9th Cir. 2001).
Advisory Committee Notes to Habeas Rule
20
II.
21
Here, Petitioner alleges that he is an inmate of Avenal
Background
22
State Prison who is serving a sentence of fifteen years to life
23
with the possibility of parole imposed in 1992 upon Petitioner’s
24
conviction of second degree murder with a gun enhancement.
25
1.)
26
Parole Hearings (BPH) made after a hearing held on August 9,
27
2006, finding Petitioner unsuitable for parole.
28
(Pet.
Petitioner challenges the decision of California’s Board of
(Pet. 1, 5-6.)
It appears from Petitioner’s allegations and the transcript
2
1
of the parole hearing submitted with the petition that Petitioner
2
attended the parole hearing before the board on August 9, 2006
3
(doc. 1, 52, 55); spoke to the board about various suitability
4
factors (doc. 1, 57-105); and made a statement to the BPH on his
5
own behalf concerning his suitability for parole (doc. 1, 113-
6
15).
7
made a closing statement on his behalf.
8
98, 108-12.)
9
Further, counsel assisted Petitioner at the hearing and
(Doc. 1, 52, 54, 90, 93,
The transcript of the hearing also reflects that Petitioner
10
was present at the conclusion of the hearing when the BPH
11
explained why it decided that Petitioner was not suitable for
12
parole.
13
and Petitioner’s criminal history.
14
The board relied on the nature of the commitment offense
(Doc. 1, 116-18.)
Petitioner asks this Court to review whether there was some
15
evidence to support the conclusion that Petitioner was unsuitable
16
for parole because he posed a current threat of danger to the
17
public if released.
18
an absence of some evidence to support the BPH’s decision, the
19
state courts’ decisions upholding the denial of parole were
20
unreasonable applications of clearly established federal law.
21
Petitioner also argues that the BPH failed to apply correctly
22
California law concerning factors of parole suitability.
23
5-6, 8-11, 15-48.)
Petitioner contends that because there was
(Pet.
24
III.
25
Because the petition was filed after April 24, 1996, the
Failure to State a Cognizable Claim
26
effective date of the Antiterrorism and Effective Death Penalty
27
Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
28
v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
3
Lindh
1
(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
2
A district court may entertain a petition for a writ of
3
habeas corpus by a person in custody pursuant to the judgment of
4
a state court only on the ground that the custody is in violation
5
of the Constitution, laws, or treaties of the United States. 28
6
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
7
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
8
16 (2010) (per curiam).
9
The Supreme Court has characterized as reasonable the
10
decision of the Court of Appeals for the Ninth Circuit that
11
California law creates a liberty interest in parole protected by
12
the Fourteenth Amendment Due Process Clause, which in turn
13
requires fair procedures with respect to the liberty interest.
14
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
15
However, the procedures required for a parole determination
16
are the minimal requirements set forth in Greenholtz v. Inmates
17
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1
18
Swarthout v. Cooke, 131 S.Ct. 859, 862.
19
rejected inmates’ claims that they were denied a liberty interest
In Swarthout, the Court
20
1
21
22
23
24
25
26
27
28
In Greenholtz, the Court held that a formal hearing is not required
with respect to a decision concerning granting or denying discretionary
parole; it is sufficient to permit the inmate to have an opportunity to be
heard and to be given a statement of reasons for the decision made. Id. at
16. The decision maker is not required to state the evidence relied upon in
coming to the decision. Id. at 15-16. The Court reasoned that because there
is no constitutional or inherent right of a convicted person to be released
conditionally before expiration of a valid sentence, the liberty interest in
discretionary parole is only conditional and thus differs from the liberty
interest of a parolee. Id. at 9. Further, the discretionary decision to
release one on parole does not involve restrospective factual determinations,
as in disciplinary proceedings in prison; instead, it is generally more
discretionary and predictive, and thus procedures designed to elicit specific
facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due
process was satisfied where the inmate received a statement of reasons for the
decision and had an effective opportunity to insure that the records being
considered were his records, and to present any special considerations
demonstrating why he was an appropriate candidate for parole. Id. at 15.
4
1
because there was an absence of “some evidence” to support the
2
decision to deny parole.
3
4
5
6
7
8
9
10
The Court stated:
There is no right under the Federal Constitution
to be conditionally released before the expiration of
a valid sentence, and the States are under no duty
to offer parole to their prisoners. (Citation omitted.)
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. In Greenholtz, we found
that a prisoner subject to a parole statute similar
to California’s received adequate process when he
was allowed an opportunity to be heard and was provided
a statement of the reasons why parole was denied.
(Citation omitted.)
11
Swarthout, 131 S.Ct. 859, 862.
12
petitioners had received the process that was due as follows:
13
14
The Court concluded that the
They were allowed to speak at their parole hearings
and to contest the evidence against them, were afforded
access to their records in advance, and were notified
as to the reasons why parole was denied....
15
16
That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
[the petitioners] received due process.
17
Swarthout, 131 S.Ct. at 862.
The Court in Swarthout expressly
18
noted that California’s “some evidence” rule is not a substantive
19
federal requirement, and correct application of California’s
20
“some evidence” standard is not required by the federal Due
21
Process Clause.
Id. at 862-63.
22
Here, Petitioner asks this Court to engage in the very type
23
of analysis foreclosed by Swarthout.
Petitioner does not state
24
facts that point to a real possibility of constitutional error or
25
that otherwise would entitle Petitioner to habeas relief because
26
California’s “some evidence” requirement is not a substantive
27
federal requirement.
Review of the record for “some evidence” to
28
5
1
support the denial of parole is not within the scope of this
2
Court’s habeas review under 28 U.S.C. § 2254.
3
Petitioner cites state law concerning the appropriate weight
4
to be given to evidence.
5
or claims rest on state law, they are not cognizable on federal
6
habeas corpus.
7
state issue that does not rise to the level of a federal
8
constitutional violation.
9
S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68
To the extent that Petitioner’s claim
Federal habeas relief is not available to retry a
Wilson v. Corcoran, 562 U.S. — , 131
10
(1991).
11
cognizable in federal habeas corpus.
12
616, 623 (9th Cir. 2002).
Alleged errors in the application of state law are not
Souch v. Schiavo, 289 F.3d
13
A petition for habeas corpus should not be dismissed without
14
leave to amend unless it appears that no tenable claim for relief
15
can be pleaded were such leave granted.
16
F.2d 13, 14 (9th Cir. 1971).
17
Jarvis v. Nelson, 440
It is clear from the allegations in the petition and the
18
related documentation that Petitioner attended the parole
19
suitability hearing, made statements to the BPH, and received a
20
statement of reasons for the decision of the BPH.
21
appears from the face of the petition that Petitioner received
22
all process that was due, Petitioner cannot state a tenable due
23
process claim.
24
25
Because it
Accordingly, it will be recommended that the petition be
dismissed with leave to amend.
26
IV.
27
Unless a circuit justice or judge issues a certificate of
28
Certificate of Appealability
appealability, an appeal may not be taken to the Court of Appeals
6
1
from the final order in a habeas proceeding in which the
2
detention complained of arises out of process issued by a state
3
court.
4
U.S. 322, 336 (2003).
5
only if the applicant makes a substantial showing of the denial
6
of a constitutional right.
7
petitioner must show that reasonable jurists could debate whether
8
the petition should have been resolved in a different manner or
9
that the issues presented were adequate to deserve encouragement
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue
§ 2253(c)(2).
Under this standard, a
10
to proceed further.
11
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
12
certificate should issue if the Petitioner shows that jurists of
13
reason would find it debatable whether the petition states a
14
valid claim of the denial of a constitutional right and that
15
jurists of reason would find it debatable whether the district
16
court was correct in any procedural ruling.
17
529 U.S. 473, 483-84 (2000).
18
Miller-El v. Cockrell, 537 U.S. at 336
A
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
19
the claims in the habeas petition, generally assesses their
20
merits, and determines whether the resolution was debatable among
21
jurists of reason or wrong.
22
applicant to show more than an absence of frivolity or the
23
existence of mere good faith; however, it is not necessary for an
24
applicant to show that the appeal will succeed.
25
Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
26
A district court must issue or deny a certificate of
27
appealability when it enters a final order adverse to the
28
applicant.
Rule 11(a) of the Rules Governing Section 2254 Cases.
7
1
Here, it does not appear that reasonable jurists could
2
debate whether the petition should have been resolved in a
3
different manner.
4
of the denial of a constitutional right.
5
recommended that the Court decline to issue a certificate of
6
appealability.
Petitioner has not made a substantial showing
7
V.
8
Accordingly, it is RECOMMENDED that:
9
1)
Accordingly, it will be
Recommendations
The petition for writ of habeas corpus be DISMISSED
10
without leave to amend because Petitioner has failed to state a
11
claim that is cognizable in a proceeding pursuant to 28 U.S.C.
12
§ 2254; and
13
2)
14
15
16
The Court DECLINE to issue a certificate of
appealability; and
3)
The Clerk be DIRECTED to close the action because
dismissal would terminate the proceeding in its entirety.
17
These findings and recommendations are submitted to the
18
United States District Court Judge assigned to the case, pursuant
19
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
20
the Local Rules of Practice for the United States District Court,
21
Eastern District of California.
22
being served with a copy, any party may file written objections
23
with the Court and serve a copy on all parties.
24
should be captioned “Objections to Magistrate Judge’s Findings
25
and Recommendations.”
26
and filed within fourteen (14) days (plus three (3) days if
27
served by mail) after service of the objections.
28
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.
Within thirty (30) days after
Such a document
Replies to the objections shall be served
8
The Court will
1
§ 636 (b)(1)(C).
2
objections within the specified time may waive the right to
3
appeal the District Court’s order.
4
1153 (9th Cir. 1991).
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
5
6
IT IS SO ORDERED.
7
Dated:
ie14hj
May 3, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?