Ricchio v. Hornbeak et al
Filing
24
FINDINGS and RECOMMENDATIONS to Dismiss Petitioner's Due Process Claim Concerning Evidence without Leave to Amend for Failure to State a Cognizable Claim; FINDINGS and RECOMMENDATIONS to Deny Petitioner's Remaining Claims and Petitioner 9;s Request for an Evidentiary Hearing; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Enter Judgment for Respondent; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 5/11/2011. Referred to Judge Oliver W. Wanger. Objections to F&R due by 6/14/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LINDA ELIZABETH RICCHIO,
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18
)
)
Petitioner,
)
)
)
v.
)
)
WARDEN TINA HORNBEAK, et al., )
)
Respondents.
)
)
)
1:10-cv—0824-OWW-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITIONER’S DUE PROCESS
CLAIM CONCERNING EVIDENCE
WITHOUT LEAVE TO AMEND FOR
FAILURE TO STATE A COGNIZABLE
CLAIM (DOCS. 1, 5)
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S REMAINING
CLAIMS AND PETITIONER’S REQUEST
FOR AN EVIDENTIARY HEARING
(DOCS. 1, 5)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO ENTER
JUDGMENT FOR RESPONDENT
19
20
OBJECTIONS DEADLINE:
THIRTY (30) DAYS
21
Petitioner is a state prisoner proceeding pro se with a
22
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
23
The matter has been referred to the Magistrate Judge pursuant to
24
28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304.
Pending before
25
the Court is the petition, which was filed on April 28, 2010, and
26
an addendum that was filed on May 19, 2010.
(Docs. 1, 5.)
27
Respondent’s answer was filed on August 25, 2010, and
28
1
1
Petitioner’s traverse was filed on September 13, 2010.
2
Petitioner filed a supplement to the traverse on September 24,
3
2010.
4
I.
5
Rule 4 of the Rules Governing § 2254 Cases in the United
Consideration of Dismissal of the Petition
6
States District Courts (Habeas Rules) requires the Court to make
7
a preliminary review of each petition for writ of habeas corpus.
8
The Court must summarily dismiss a petition "[i]f it plainly
9
appears from the petition and any attached exhibits that the
10
petitioner is not entitled to relief in the district court....”
11
Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
12
1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.
13
1990).
14
grounds of relief available to the Petitioner; 2) state the facts
15
supporting each ground; and 3) state the relief requested.
16
Notice pleading is not sufficient; rather, the petition must
17
state facts that point to a real possibility of constitutional
18
error.
19
O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.
20
Allison, 431 U.S. 63, 75 n.7 (1977)).
21
that are vague, conclusory, or palpably incredible are subject to
22
summary dismissal.
23
Cir. 1990).
24
Habeas Rule 2(c) requires that a petition 1) specify all
Rule 4, Advisory Committee Notes, 1976 Adoption;
Allegations in a petition
Hendricks v. Vasquez, 908 F.2d 490, 491 (9th
Further, the Court may dismiss a petition for writ of habeas
25
corpus either on its own motion under Habeas Rule 4, pursuant to
26
the respondent's motion to dismiss, or after an answer to the
27
petition has been filed.
28
8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43
Advisory Committee Notes to Habeas Rule
2
1
2
(9th Cir. 2001).
Here, Respondent answered the petition on August 25, 2010,
3
and Petitioner filed a traverse in September 2011.
4
the United States Supreme Court decided Swarthout v. Cooke, 562
5
U.S. –, 131 S.Ct. 859, 861-62 (2011).
6
to apply in the instant case, and because no motion to dismiss
7
any claims in the petition has been filed, the Court proceeds to
8
consider whether the petition states a cognizable claim for
9
relief.
Subsequently,
Because Swarthout appears
10
II.
11
Petitioner alleges that she is an inmate of Valley State
Background
12
Prison for Women in Chowchilla who is serving a sentence of
13
twenty-five (25) years to life imposed in the San Diego County
14
Superior Court upon Petitioner’s 1989 conviction of first degree
15
murder with personal use of a firearm.
16
challenges the decision of California’s Board of Parole Hearings
17
(BPH) made after a hearing held on April 10, 2007, to deny
18
Petitioner parole for five years.
19
argues that the state court decisions upholding the parole
20
determination were objectively unreasonable.
(Pet. 1, 51.)
(Pet. 16.)
Petitioner
Petitioner also
(Pet. 14-18.)
21
It appears from Petitioner’s allegations and accompanying
22
documentation that she attended the parole hearing held before
23
the board on April 10, 2007.
24
Petitioner spoke to the Board about numerous parole suitability
25
factors.
26
Petitioner made a statement in favor of parole to the board on
27
her own behalf.
28
at the hearing by counsel, who appeared and advocated on her
(Pet., doc. 1-2, 1, 13.)
(Id. at 17-80; doc. 1-3, 1-79; doc. 1-4, 1-4.)
(Doc. 1-4, 41-44.)
3
Petitioner was also assisted
1
behalf.
2
41.)
3
reasons for the denial of parole.
4
decision was based on the nature of the commitment offense,
5
Petitioner’s failure to take full responsibility for her offense,
6
Petitioner’s dysfunctional social history and insufficient
7
participation and progress in beneficial self-help programming,
8
problems with her parole plan, and Petitioner’s history of
9
substance abuse.
10
(Doc. 1-2, 1, 10, 13, 20, 24; doc. 1-3, 5; doc. 1-4, 37-
Petitioner was present when the board gave a statement of
(Doc. 1-4, 55-70.)
The
(Id.)
Petitioner asks this Court to review whether there was some
11
evidence to support the conclusion that Petitioner was unsuitable
12
for parole because she posed a current threat of danger to the
13
public if released.
14
respects, the board and the state courts misinterpreted the facts
15
or made factual conclusions that are not supported by the
16
evidence.
17
all relevant information, and it denied her rights to review
18
relevant documents.
19
courts wrongfully denied an evidentiary hearing.
20
complains that the denial of parole was punishment for having
21
married an ex-correctional officer.
22
rights to due process and equal protection of the laws were
23
violated; further, her protection against cruel and unusual
24
punishment under the Eighth and Fourteenth Amendments was
25
infringed by the board’s reliance on the victim’s sister’s
26
version of the commitment offense and false allegations of
27
Correctional Officer Robinson.
28
///
Petitioner complains that in numerous
Petitioner contends that the board did not consider
Petitioner also complains that the state
Petitioner
Petitioner alleges that her
(Pet. 8-12, 19-45.)
4
1
III.
2
Because the petition was filed after April 24, 1996, the
Failure to Allege a Claim Cognizable on Habeas Corpus
3
effective date of the Antiterrorism and Effective Death Penalty
4
Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
5
v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
6
(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
7
A district court may entertain a petition for a writ of
8
habeas corpus by a person in custody pursuant to the judgment of
9
a state court only on the ground that the custody is in violation
Lindh
10
of the Constitution, laws, or treaties of the United States. 28
11
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
12
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
13
16 (2010) (per curiam).
14
The Supreme Court has characterized as reasonable the
15
decision of the Court of Appeals for the Ninth Circuit that
16
California law creates a liberty interest in parole protected by
17
the Fourteenth Amendment Due Process Clause, which in turn
18
requires fair procedures with respect to the liberty interest.
19
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
20
However, the procedures required for a parole determination
21
are the minimal requirements set forth in Greenholtz v. Inmates
22
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1
23
1
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,
5
1
Swarthout v. Cooke, 131 S.Ct. 859, 862.
2
rejected inmates’ claims that they were denied a liberty interest
3
because there was an absence of “some evidence” to support the
4
decision to deny parole.
5
6
7
8
9
10
11
12
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.)
13
Swarthout, 131 S.Ct. 859, 862.
14
petitioners had received the process that was due as follows:
15
16
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....
17
18
That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
[the petitioners] received due process.
19
Swarthout, 131 S.Ct. at 862.
The Court in Swarthout expressly
20
noted that California’s “some evidence” rule is not a substantive
21
federal requirement, and correct application of California’s
22
“some evidence” standard is not required by the Federal Due
23
Process Clause.
Id. at 862-63.
24
25
26
27
28
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.
6
1
Here, in her due process claim, Petitioner asks this Court
2
to engage in the very type of analysis foreclosed by Swarthout.
3
This Court will not re-weigh the evidence or otherwise review the
4
correctness of the board’s factual conclusions.
5
review of the transcript does not reveal the absence of any
6
necessary information or the denial of Petitioner’s access to
7
such information.
8
a real possibility of constitutional error or that otherwise
9
would entitle Petitioner to habeas relief because California’s
Further, a
Petitioner does not state facts that point to
10
“some evidence” requirement is not a substantive federal
11
requirement.
12
the denial of parole is not within the scope of this Court’s
13
habeas review under 28 U.S.C. § 2254.
14
Review of the record for “some evidence” to support
Petitioner cites state law concerning the appropriate weight
15
to be given to evidence.
16
or claims rest on state law, they are not cognizable on federal
17
habeas corpus.
18
state issue that does not rise to the level of a federal
19
constitutional violation.
20
S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68
21
(1991).
22
cognizable in federal habeas corpus.
23
616, 623 (9th Cir. 2002).
24
To the extent that Petitioner’s claim
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
Further, to the extent that Petitioner complains of errors
25
in the state post-conviction process, Petitioner does not state a
26
claim that would entitle her to relief in this proceeding.
27
established that federal habeas relief is not available to
28
redress procedural errors in the state collateral review process.
7
It is
1
Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998); Carriger v.
2
Stewart, 95 F.3d 755, 763 (9th Cir. 1996), vacated on other
3
grounds, Carriger v. Stewart, 132 F.3d 463 (1997); Franzen v.
4
Brinkman, 877 F.2d 26, 26 (9th Cir. 1989).
5
A petition for habeas corpus should not be dismissed without
6
leave to amend unless it appears that no tenable claim for relief
7
can be pleaded were such leave granted.
8
F.2d 13, 14 (9th Cir. 1971).
9
Jarvis v. Nelson, 440
Here, it is clear from the allegations in the petition that
10
Petitioner attended the parole suitability hearing, made
11
statements to the BPH, and received a statement of reasons for
12
its decision.
13
documentation establish that she had an opportunity to be heard
14
at the hearing and received a statement of reasons for the
15
decision in question.
16
Petitioner could state a tenable due process claim.
Thus, Petitioner’s own allegations and
It therefore does not appear that
17
Accordingly, it will be recommended that Petitioner’s due
18
process claim concerning the evidence supporting the denial of
19
parole be dismissed without leave to amend.
20
IV.
21
Petitioner refers to the reliance of the BPH and the
22
California courts upon the “version” of Petitioner’s commitment
23
offense given by Susan Fisher, the sister of the victim of
24
Petitioner’s commitment offense.
25
was an “ex-BPH chairperson” and a victim rights advocate for
26
Governor Schwarzenegger.
27
Fisher’s statement of the offense on a crime victim’s website was
28
inconsistent with her sworn testimony given at Petitioner’s
Fair Tribunal
Petitioner alleges that Fisher
(Pet. 11, 29.)
8
Petitioner alleges that
1
trial.
2
an evidentiary hearing by state authorities so that she could
3
present evidence of her own version of the offense.
(Pet. 29.)
Petitioner complains that she was not given
(Id.)
4
Title 28 U.S.C. § 2254 provides in pertinent part:
5
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–
6
7
8
9
10
11
12
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
13
14
15
16
(e)(1) In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a
determination of a factual issue made by a State
court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption
or correctness by clear and convincing evidence.
17
The petitioner bears the burden of establishing that the
18
decision of the state court was contrary to, or involved an
19
unreasonable application of, the precedents of the United States
20
Supreme Court.
Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th
21
Cir. 2004); Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir.
22
1996).
23
A state court’s decision contravenes clearly established
24
Supreme Court precedent if it reaches a legal conclusion contrary
25
to that of the Supreme Court or concludes differently on an
26
indistinguishable set of facts.
Williams v. Taylor, 529 U.S.
27
362, 405-06 (2000).
The state court need not have cited Supreme
28
9
1
Court precedent or have been aware of it, "so long as neither the
2
reasoning nor the result of the state-court decision contradicts
3
[it]."
4
unreasonably applies clearly established federal law if it either
5
1) correctly identifies the governing rule but then applies it to
6
a new set of facts in a way that is objectively unreasonable, or
7
2) extends or fails to extend a clearly established legal
8
principle to a new context in a way that is objectively
9
unreasonable.
Early v. Packer, 537 U.S. 3, 8 (2002).
The state court
Hernandez v. Small, 282 F.3d 1132, 1142 (9th
10
Cir.2002); see, Williams, 529 U.S. at 408-09.
11
law is unreasonable if it is objectively unreasonable; an
12
incorrect or inaccurate application of federal law is not
13
necessarily unreasonable.
14
An application of
Williams, 529 U.S. at 410.
A fair trial in a fair tribunal is a basic requirement of
15
due process.
16
California inmates have a due process right to parole
17
consideration by neutral, unbiased decision makers.
18
Maass, 915 F.2d 418, 422 (9th Cir. 1990).2
19
In re Murchison, 349 U.S. 133, 136 (1955).
O’Bremski v.
Here, the allegations of the petition and transcripts of the
20
hearing reflect that Fisher appeared at Petitioner’s parole
21
hearing as a family member of the victim; Fisher did not function
22
as a commissioner.
23
commissioners presiding at Petitioner’s hearing considered any
24
website or other extra-record source of information from Fisher.
There is no basis for a conclusion that the
25
26
27
28
2
Although Petitioner mentions the Eighth and Fourteenth Amendments in
connection with this claim (Pet. 11), it appears that Petitioner is alleging a
claim concerning bias of the tribunal, which the Court understands to be a
claim based on Petitioner’s right to due process of law guaranteed by the
Fourteenth Amendment.
10
1
Further, there is no evidence presented that warrants an
2
inference that the commissioners who presided over Petitioner’s
3
parole hearing were influenced in any way by Fisher’s previous
4
status as a member of the BPH.
5
Petitioner also submitted materials concerning Presiding
6
Commissioner Ed Martinez, who was one of two commissioners who
7
presided over Petitioner’s parole hearing.
8
evidence that Commissioner Martinez exhibited any bias or
9
unfairness while he presided over Petitioner’s parole hearing.
10
The Court finds no
Because Petitioner has not established any bias or other
11
basis for a violation of due process with respect to the board’s
12
impartiality, Petitioner has not shown that the state courts’
13
decisions upholding the board’s denial of parole were contrary
14
to, or involved an unreasonable application of, the precedents of
15
the United States Supreme Court.
16
17
Accordingly, it will be recommended that Petitioner’s claim
concerning the lack of an impartial tribunal be denied.
18
V.
19
Petitioner alleges that the BPH’s actions denied her the
20
21
Equal Protection
equal protection of the laws.
(Pet. 8, 9, 24, 32.)
Prisoners are protected under the Equal Protection Clause of
22
the Fourteenth Amendment from invidious discrimination based on
23
race, religion, or membership in a protected class subject to
24
restrictions and limitations necessitated by legitimate
25
penological interests.
26
(1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979).
27
Protection Clause essentially directs that all persons similarly
28
situated should be treated alike.
Wolff v. McDonnell, 418 U.S. 539, 556
11
The Equal
City of Cleburne, Texas v.
1
Cleburne Living Center, 473 U.S. 432, 439 (1985).
2
equal protection are shown when a respondent intentionally
3
discriminated against a petitioner based on membership in a
4
protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686
5
(9th Cir. 2001), or when a respondent intentionally treated a
6
member of an identifiable class differently from other similarly
7
situated individuals without a rational basis, or a rational
8
relationship to a legitimate state purpose, for the difference in
9
treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564
10
11
Violations of
(2000).
Here, Petitioner has not alleged any facts to demonstrate a
12
violation of equal protection.
13
member of a protected class or that membership in a protected
14
class was the basis of any alleged discrimination.
15
16
She has not alleged that she is a
Accordingly, it will be recommended that Petitioner’s equal
protection claim be denied.
17
VI.
18
Petitioner appears to argue that she was punished, in
19
effect, for having married an ex-correctional officer while in
20
custody and having sued Correctional Officer Robinson for his
21
allegedly having sexually victimized her in prison.
22
Petitioner argues that denial of parole for five years for these
23
reasons was cruel and unusual punishment and a denial of due
24
process and equal protection.
25
Punishment
(Pet. 24.)
(Pet. 32.)
The transcript of the hearing reflects that Petitioner
26
responded to questions of Presiding Commissioner Martinez
27
regarding her marriage to Adolpho Navarro, whom Petitioner met
28
while he was a correctional officer at the prison where she was
12
1
incarcerated.
2
relationship only after Navarro had stopped working at the
3
prison, and they were married from March 1991 through May 2004,
4
when they were divorced due to Navarro’s adultery.
5
74-75.)
6
her father’s abuse of her mother that one could stay in a
7
marriage with poor communication skills and little understanding
8
of a spouse’s needs.
9
found another partner, Petitioner appropriately filed for divorce
Petitioner testified that they began a romantic
(Doc. 2-1,
Petitioner testified that she had learned from observing
(Doc. 1-2, 77-78.)
However, when Navarro
10
because her husband’s behavior was inappropriate.
11
When Commissioner Martinez asked Petitioner if during her
12
relationship with Navarro, she had displayed some behavior
13
similar to her behavior prior to the homicide, Petitioner denied
14
it.
(Id. at 78.)
(Id. at 79-80.)
15
The evidence at the hearing included documentation of a
16
prison disciplinary investigation in 1990 concerning whether
17
Petitioner had a personal relationship with Navarro.
18
reported that Petitioner had refused to cooperate.
19
80.)
20
letters and photographs reflecting a romantic relationship with
21
Navarro since late 1989.
22
It was
(Doc. 1-2,
Additional investigation revealed that Petitioner had
(Doc. 1-3, 2-5.)
Commissioner Martinez explained to Petitioner that the issue
23
concerning this conduct of Petitioner was that Petitioner had a
24
relationship, which she denied during an investigation, and the
25
relationship itself was against the correctional department’s
26
policy.
27
marriage was helpful to her progress, Commissioner Martinez
28
characterized the decision to become involved with a correctional
(Doc. 1-3, 5-9.)
Although Petitioner believed that her
13
1
officer as a poor decision.
2
she fully understood, and she agreed with the Commissioner.
3
(Id.)
4
the focus of the discussion was Petitioner’s judgment and
5
decision-making, and that there had been a pattern of behavior
6
carrying over from before the commitment offense to after it.
7
(Id. at 10-11.)
8
9
(Id. at 9.)
Petitioner said that
Commissioner Martinez summarized the matter by saying that
The board then brought up an internal affairs investigation
conducted in 2007 concerning Petitioner’s allegations that a male
10
correctional officer named Sean Robinson had a sexual
11
relationship with Petitioner for several years.
12
had surfaced only after Petitioner had obtained confidential
13
information concerning the officer from a family member.
14
Petitioner filed a lawsuit concerning the alleged sexual
15
misconduct.
16
although Petitioner alleged that the relationship had existed, it
17
could not be substantiated.
18
related that Petitioner was infatuated with Robinson and
19
endeavored to be located wherever the officer was in the prison,
20
as well as a photograph of the officer which Petitioner had
21
claimed he had given her but which was actually printed on a
22
vocational graphic arts in-service training book.
23
sexual misconduct alleged by Petitioner had not surfaced in the
24
investigation.
25
Petitioner had moved forward in her rehabilitation during her
26
incarceration because her conduct was similar to the crime for
27
which she was incarcerated.
28
(Id. at 15.)
The allegation
The investigators concluded that
Evidence included witnesses who
Evidence of
The conclusion was that it was questionable if
(Doc. 1-3, 12-15.)
The conclusion concerning the similarity of Petitioner’s
14
1
post-offense behavior with pre-offense conduct was based on
2
Petitioner’s commitment offense, namely, the murder of a former,
3
long-term boyfriend, whom Petitioner had stalked obsessively.
4
Petitioner had secretly acquired information concerning her
5
victim and his whereabouts.
6
and moved to a new place to reside with her, Petitioner continued
7
to contact the victim and his partner, harassed the victim’s
8
family, and threatened and confronted the victim repeatedly.
9
(Doc. 1-2, 27-37.)
After the victim found a new partner
10
Petitioner denied Robinson's allegations that she had
11
stalked him, and she contended that she had been set up by
12
Robinson, who had read her file concerning the commitment
13
offense.
14
(Doc. 1-3, 15-19.)
In explaining their decision to deny parole, the
15
commissioners relied on the nature of the commitment offense,
16
noting that after Petitioner’s lengthy relationship with the
17
victim disintegrated due to his having another partner,
18
Petitioner stalked the victim in a calculated manner and shot him
19
repeatedly after renting an apartment next to his.
20
55-57.)
21
except for the 1990 disciplinary report concerning conspiring
22
with a staff member, which was considered to show a continuing
23
pattern of behavior.
24
appeared to be that Petitioner failed to take responsibility for
25
her offense because she asserted that she killed the victim
26
reactively at a time when she intended to kill herself.
27
63, 66.)
Petitioner also needed to address her substance abuse
28
problem.
(Id. at 61.)
(Doc. 1-4,
Petitioner’s programming was found to have been good
(Id. at 58, 68-70.)
15
The primary concern
(Id. at
1
The record thus shows that Petitioner’s relationship with
2
Navarro was considered significant because Petitioner engaged in
3
secretive behavior, and the relationship was contrary to the
4
rules and policies of the correctional institution; it was
5
important because Petitioner acted covertly in violation of
6
policies regarding relationships, and not because Petitioner
7
exercised any right to a relationship or to a marital status.
8
Likewise, the situation involving Robinson reflected
9
continued pursuit or stalking behavior with a correctional
10
officer.
11
context of Petitioner’s programming and progress while in the
12
institution.
13
Petitioner was punished.
Both instances were considered and evaluated in the
The record does not support the allegations that
14
Petitioner adamantly denies that her relationship with
15
Navarro predated his separation from employment with the prison,
16
and just as emphatically alleges that she was pursued by Robinson
17
instead of pursuing him.
18
within the scope of this Court’s review of the board’s and the
19
state courts’ proceedings to re-weigh the evidence or to evaluate
20
the application of the “some evidence” rule.
The Court reiterates that it is not
21
Petitioner has not demonstrated that she was punished for
22
exercise of her right to marry or involvement in relationships
23
with correctional officers.
24
demonstrated that she was “punished” for having filed a lawsuit
25
against, or because of, Correctional Officer Robinson.
26
the record reflects that the board appropriately considered the
27
extent to which Petitioner had progressed with respect to her
28
participation in, and judgment concerning, interpersonal
Likewise, Petitioner has not
16
Instead,
1
relationships.
2
Petitioner’s conduct with correctional officers was considered to
3
reflect a lack of progress in rehabilitation and programming in
4
connection with Petitioner’s tendency to develop obsessive
5
attachments with inappropriate partners – matters central to the
6
commission of Petitioner’s commitment offense.
7
The record supports the conclusion that
Accordingly, it will be recommended that Petitioner’s claim
8
of unfairness or inappropriate punishment in violation of the
9
Eighth and Fourteenth Amendments be denied.
10
In summary, the Court concludes that Petitioner’s due
11
process claim concerning the absence of some evidence to support
12
the denial of parole is not cognizable in a proceeding pursuant
13
to 28 U.S.C. § 2254.
14
because Petitioner has not shown that she is entitled to relief
15
on her Fourteenth Amendment claims concerning the lack of an
16
impartial tribunal and denial of equal protection, or on her
17
claim under the Eighth and Fourteenth Amendments.
The remaining claims should be denied
18
VII.
19
Petitioner requests that she be given an evidentiary
20
21
Request for an Evidentiary Hearing
hearing.
If a petition is not dismissed, the Court must review the
22
answer, any transcripts and records of state-court proceedings,
23
and any materials submitted under Rule 7 to determine whether an
24
evidentiary hearing is warranted.
25
considering a request for an evidentiary hearing, a court must
26
first determine whether a factual basis exists in the record to
27
support the petitioner’s claim.
28
1078 (9th Cir. 1999).
Habeas Rule Rule 8(a).
In
Baja v. Ducharme, 187 F.3d 1075,
A court will determine whether the
17
1
Petitioner has alleged facts that, if proven, would entitle him
2
or her to habeas relief.
3
(9th Cir. 2005).
4
Earp v. Ornoski, 431 F.3d 1158, 1167
As demonstrated by the foregoing analysis of the pleadings
5
and exhibits, Petitioner did not allege or document specific
6
facts that, if proven, would entitle her to relief.
7
complaints with the inferences and conclusions drawn by the board
8
concern factual inconsistencies or controversies that were
9
considered by the board and were resolved against Petitioner by
10
the board in an appropriate exercise of its adjudicatory powers.
11
The record before the Court is adequate for a decision on the
12
merits.
13
14
Petitioner’s
It will be recommended that Petitioner’s request for an
evidentiary hearing be denied.
15
VIII.
16
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
17
appealability, an appeal may not be taken to the Court of Appeals
18
from the final order in a habeas proceeding in which the
19
detention complained of arises out of process issued by a state
20
court.
21
U.S. 322, 336 (2003).
22
only if the applicant makes a substantial showing of the denial
23
of a constitutional right.
24
petitioner must show that reasonable jurists could debate whether
25
the petition should have been resolved in a different manner or
26
that the issues presented were adequate to deserve encouragement
27
to proceed further.
28
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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
Miller-El v. Cockrell, 537 U.S. at 336
18
A
1
certificate should issue if the Petitioner shows that jurists of
2
reason would find it debatable whether the petition states a
3
valid claim of the denial of a constitutional right and that
4
jurists of reason would find it debatable whether the district
5
court was correct in any procedural ruling.
6
529 U.S. 473, 483-84 (2000).
7
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
8
the claims in the habeas petition, generally assesses their
9
merits, and determines whether the resolution was debatable among
10
jurists of reason or wrong.
11
applicant to show more than an absence of frivolity or the
12
existence of mere good faith; however, it is not necessary for an
13
applicant to show that the appeal will succeed.
14
Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
15
A district court must issue or deny a certificate of
16
appealability when it enters a final order adverse to the
17
applicant.
18
Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
19
debate whether the petition should have been resolved in a
20
different manner.
21
of the denial of a constitutional right.
22
recommended that the Court decline to issue a certificate of
23
appealability.
24
IX.
25
Accordingly, it is RECOMMENDED that:
26
1)
Petitioner has not made a substantial showing
Accordingly, it will be
Recommendation
Petitioner’s due process claim concerning the evidence
27
supporting the denial of parole be DISMISSED without leave to
28
amend for failure to state a claim cognizable in a proceeding
19
1
2
pursuant to 28 U.S.C. § 2254; and
2)
The petition be DENIED insofar as Petitioner claims that
3
her Fourteenth Amendment right to due process of law was violated
4
by the absence of an impartial tribunal, her Fourteenth Amendment
5
right to the equal protection of the laws was denied by the
6
actions of the Board of Parole Hearings, and her Eighth and
7
Fourteenth Amendment rights were violated by the reliance of the
8
Board of Parole Hearings on reports concerning Petitioner’s
9
conduct relating to her romantic involvement with correctional
10
officers; and
11
3)
12
hearing; and
13
4)
14
The Court DENY Petitioner’s request for an evidentiary
The Court DECLINE to issue a certificate of
appealability; and
15
4)
16
These findings and recommendations are submitted to the
17
United States District Court Judge assigned to the case, pursuant
18
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
19
the Local Rules of Practice for the United States District Court,
20
Eastern District of California.
21
being served with a copy, any party may file written objections
22
with the Court and serve a copy on all parties.
23
should be captioned “Objections to Magistrate Judge’s Findings
24
and Recommendations.”
25
and filed within fourteen (14) days (plus three (3) days if
26
served by mail) after service of the objections.
27
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
28
636 (b)(1)(C).
The Clerk be DIRECTED to enter judgment for Respondent.
Within thirty (30) days after
Such a document
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
20
1
objections within the specified time may waive the right to
2
appeal the District Court’s order.
3
1153 (9th Cir. 1991).
Martinez v. Ylst, 951 F.2d
4
5
IT IS SO ORDERED.
6
Dated:
ie14hj
May 11, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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