Long Diep v. J D Hartley

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 5/9/2011 recommending that 1 Petition for Writ of Habeas Corpus be DISMISSED. Referred to Judge Anthony W. Ishii; Objections to F&R due by 6/13/2011. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LONG DIEP,

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Petitioner,

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v.
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J. D. HARTLEY, Warden,
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Respondent.
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1:10-cv—00431-AWI-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

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254.

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Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and

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304.

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on March 5, 2010.

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June 22, 2010, and Petitioner filed a traverse on July 8, 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 on

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I.

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Rule 4 of the Rules Governing § 2254 Cases in the United

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States District Courts (Habeas Rules) requires that the Court

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summarily dismiss a petition "[i]f it plainly appears from the

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petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court....”

Consideration of Dismissal of the Petition

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Habeas Rule 4;

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O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also

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Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

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2(c) requires that a petition 1) specify all grounds of relief

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available to the Petitioner; 2) state the facts supporting each

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ground; and 3) state the relief requested.

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not sufficient; rather, the petition must state facts that point

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to a real possibility of constitutional error.

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Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at

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420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).

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Allegations in a petition that are vague, conclusory, or palpably

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incredible are subject to summary dismissal.

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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Habeas Rule

Notice pleading is

Rule 4, Advisory

Hendricks v.

Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

Advisory Committee Notes to Habeas Rule

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II.

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Petitioner alleges that he is an inmate of Avenal State

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Prison who is serving a sentence of seven (7) years to life plus

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an enhancement of four (4) years imposed by the Orange County

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Superior Court in 1994 for attempted murder with use of a firearm

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in violation of Cal. Pen. Code §§ 664, 187, and 12022.5.

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2.)

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Parole Hearings (BPH) made after a hearing held on October 10,

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2008, finding Petitioner unsuitable for parole.

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Background

(Pet.

Petitioner challenges the decision of California’s Board of

(Pet. 5-6, 10.)

Petitioner’s allegations and the transcript of the parole
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hearing submitted with the petition reveal that Petitioner

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attended the parole hearing before the board on October 10, 2008

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(doc. 1, 10, 12-13); spoke to the board about various suitability

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factors (doc. 1, 20-48); and made a statement to the board on his

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own behalf concerning his suitability for parole (doc. 1, 113-

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15).

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made a closing statement on his behalf.

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64.)

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Further, counsel assisted Petitioner at the hearing and
(Doc. 1, 10, 13, 19, 58-

The transcript of the hearing also reflects that Petitioner

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was present at the conclusion of the hearing when the BPH

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explained why it decided that Petitioner was not suitable for

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parole.

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offense, Petitioner’s history of criminality and substance abuse,

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Petitioner’s problematic social history, and his failure on

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previous grants of probation.

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The board relied on the nature of the commitment

(Doc. 1, 67-73.)

Petitioner asks this Court to review whether there was some

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evidence to support the conclusion that Petitioner was unsuitable

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for parole because he posed a current threat of danger to the

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public if released.

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an absence of some evidence to support the BPH’s decision, the

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state courts’ decisions upholding the denial of parole were

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unreasonable applications of clearly established federal law and

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were based on an unreasonable determination of the facts in light

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of the evidence presented at the state hearing.

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argues that the BPH failed to apply correctly California law

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concerning factors of parole suitability.

Petitioner contends that because there was

Petitioner also

(Pet. 5-6.)

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III.

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Because the petition was filed after April 24, 1996, the

Failure to State a Cognizable Claim

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effective date of the Antiterrorism and Effective Death Penalty

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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.

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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008

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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

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A district court may entertain a petition for a writ of

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habeas corpus by a person in custody pursuant to the judgment of

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a state court only on the ground that the custody is in violation

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of the Constitution, laws, or treaties of the United States.

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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,

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16 (2010) (per curiam).

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Lindh

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The Supreme Court has characterized as reasonable the

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decision of the Court of Appeals for the Ninth Circuit that

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California law creates a liberty interest in parole protected by

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the Fourteenth Amendment Due Process Clause, which in turn

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requires fair procedures with respect to the liberty interest.

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Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).

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However, the procedures required for a parole determination

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are the minimal requirements set forth in Greenholtz v. Inmates

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of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1

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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

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Swarthout v. Cooke, 131 S.Ct. 859, 862.

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rejected inmates’ claims that they were denied a liberty interest

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because there was an absence of “some evidence” to support the

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decision to deny parole.

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In Swarthout, the Court

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.)

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Swarthout, 131 S.Ct. 859, 862.

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petitioners had received the process that was due as follows:

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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....

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That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
[the petitioners] received due process.

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Swarthout, 131 S.Ct. at 862.

The Court in Swarthout expressly

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noted that California’s “some evidence” rule is not a substantive
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federal requirement, and correct application of California’s
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“some evidence” standard is not required by the federal Due
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Process Clause.

Id. at 862-63.

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Here, Petitioner asks this Court to engage in the very type
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of analysis foreclosed by Swarthout.

Petitioner does not state

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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.

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facts that point to a real possibility of constitutional error or

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that otherwise would entitle Petitioner to habeas relief because

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California’s “some evidence” requirement is not a substantive

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federal requirement.

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support the denial of parole is not within the scope of this

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Court’s habeas review under 28 U.S.C. § 2254.

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Review of the record for “some evidence” to

Petitioner cites state law concerning the appropriate weight

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to be given to evidence.

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or claims rest on state law, they are not cognizable on federal

To the extent that Petitioner’s claim

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habeas corpus.

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state issue that does not rise to the level of a federal

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constitutional violation.

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S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68

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(1991).

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cognizable in federal habeas corpus.

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616, 623 (9th Cir. 2002).

Federal habeas relief is not available to retry a

Wilson v. Corcoran, 562 U.S. — , 131

Alleged errors in the application of state law are not
Souch v. Schiavo, 289 F.3d

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A petition for habeas corpus should not be dismissed without

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leave to amend unless it appears that no tenable claim for relief

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can be pleaded were such leave granted.

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F.2d 13, 14 (9th Cir. 1971).

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Jarvis v. Nelson, 440

Here, it is clear from the allegations in the petition and

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the related documentation that Petitioner attended the parole

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suitability hearing, made statements to the BPH, and received a

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statement of reasons for the decision of the BPH.

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appears from the face of the petition that Petitioner received

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all process that was due, Petitioner cannot state a tenable due

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process claim.

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Because it

Accordingly, it will be recommended that the petition be
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dismissed without leave to amend.

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IV.

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Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

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appealability, an appeal may not be taken to the Court of Appeals

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from the final order in a habeas proceeding in which the

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detention complained of arises out of process issued by a state

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court.

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U.S. 322, 336 (2003).

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only if the applicant makes a substantial showing of the denial

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue

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of a constitutional right.

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petitioner must show that reasonable jurists could debate whether

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the petition should have been resolved in a different manner or

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that the issues presented were adequate to deserve encouragement

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to proceed further.

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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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certificate should issue if the Petitioner shows that jurists of

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reason would find it debatable whether the petition states a

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valid claim of the denial of a constitutional right and that

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jurists of reason would find it debatable whether the district

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court was correct in any procedural ruling.

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529 U.S. 473, 483-84 (2000).

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§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336
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Slack v. McDaniel,

In determining this issue, a court conducts an overview of

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the claims in the habeas petition, generally assesses their

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merits, and determines whether the resolution was debatable among

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jurists of reason or wrong.

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applicant to show more than an absence of frivolity or the

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existence of mere good faith; however, it is not necessary for an

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applicant to show that the appeal will succeed.

Id.

It is necessary for an

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Miller-El v.

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Cockrell, 537 U.S. at 338.

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A district court must issue or deny a certificate of

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appealability when it enters a final order adverse to the

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applicant.

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Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

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debate whether the petition should have been resolved in a

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different manner.

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of the denial of a constitutional right.

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recommended that the Court decline to issue a certificate of

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Petitioner has not made a substantial showing
Accordingly, it will be

appealability.

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V.

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Accordingly, it is RECOMMENDED that:

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1)

Recommendations

The petition for writ of habeas corpus be DISMISSED

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without leave to amend because Petitioner has failed to state a

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claim that is cognizable in a proceeding pursuant to 28 U.S.C.

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§ 2254; and

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2)

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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.

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These findings and recommendations are submitted to the

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United States District Court Judge assigned to the case, pursuant

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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

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the Local Rules of Practice for the United States District Court,

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Eastern District of California.

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being served with a copy, any party may file written objections

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with the Court and serve a copy on all parties.

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should be captioned “Objections to Magistrate Judge’s Findings

Within thirty (30) days after

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Such a document

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and Recommendations.”

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and filed within fourteen (14) days (plus three (3) days if

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served by mail) after service of the objections.

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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636 (b)(1)(C).

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objections within the specified time may waive the right to

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appeal the District Court’s order.

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1153 (9th Cir. 1991).

Replies to the objections shall be served

The Court will

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

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IT IS SO ORDERED.

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Dated:
ie14hj

May 9, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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