Parks v. State of California

Filing 31

ORDER DENYING and DISREGARDING as MOOT Petitioner's 15 Motion to Continue the Petition; FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition without Leave to Amend for Failure to State a Cognizable Claim; FINDINGS and RECOMMENDATIONS to Deny Petitioner's 20 Motion for Dismissal or Default Judgment signed by Magistrate Judge Sheila K. Oberto on 5/17/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 6/20/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN DEAN PARKS,
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Petitioner,
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v.
KATHLEEN ALLISON,

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Respondent.

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1:10-cv—00829-LJO-SKO-HC
ORDER DENYING AND DISREGARDING AS
MOOT PETITIONER’S MOTION TO
CONTINUE THE PETITION (DOC. 15)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND FOR FAILURE TO
STATE A COGNIZABLE CLAIM
(DOC. 1)
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S MOTION FOR
DISMISSAL OR DEFAULT JUDGMENT
(DOC. 20)

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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.

Pursuant to 28 U.S.C. § 636(c)(1),

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Petitioner has consented to the jurisdiction of the United States
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Magistrate Judge to conduct all further proceedings in the case,
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including the entry of final judgment, by manifesting consent in
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a signed writing filed by Petitioner on May 27, 2010 (doc. 7).
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Pending before the Court is the petition, which was filed on May
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12, 2010.

Respondent answered the petition on January 18, 2011,

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and Petitioner filed a traverse on January 28, 2011, with

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supplemental replies filed on February 3, 7, and 9, 2011.

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I.

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The petition challenges on due process grounds decisions

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upholding a finding that Petitioner was unsuitable for parole

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made by state parole authorities at the Corcoran State Prison on

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March 25, 2009.

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name a proper respondent was effected on September 8, 2010.

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Petitioner attempted to stay these proceedings to permit

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exhaustion in the state courts of claims concerning his

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conviction of criminal offenses in Riverside, which Petitioner

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sought to have included in the present proceeding.

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19, 2010, Petitioner’s motion for stay and abeyance of these

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proceedings was denied because Petitioner’s claims concerning his

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Riverside County robbery convictions, which were sustained in the

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Central District of California, were not properly brought in this

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district.

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266 (C.D.Cal. 1968).

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County sentence would concern a different judgment, and thus

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would not properly be included in this petition.

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the Rules Governing Section 2254 Cases in the United States

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District Courts (Habeas Rules); Bianchi v. Blodgett, 925 F.2d

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305, 308-11 (9th Cir. 1991); Williams v. Sisto, 2009 WL 3300038,

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*12 (E.D.Cal. Oct. 14, 2009).

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Background

(Pet. 4, 53-60.)

Amendment of the petition to

On November

28 U.S.C. § 2241(d); Laue v. Nelson, 279 F.Supp. 265,
Further, a claim challenging the Riverside

Rule 2(e) of

Respondent filed an answer on January 18, 2011.

In the

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answer, Respondent admitted that Petitioner exhausted his claim

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that the parole decision was not supported by some evidence.

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(Doc. 19, 2:9-12.)
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II.

Disregard and Denial of Petitioner’s Motion to
Continue the Proceedings

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On November 24, 2010, Petitioner filed a motion to continue
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the petition, which he characterized as having been stayed or
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abated.

Because the petition in this action was not stayed, the

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basis for the motion is unclear.

Petitioner states in the

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application that all state court remedies have now been
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exhausted.

(Doc. 15, 1.)

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As Petitioner’s motion concerns the claim or claims pending
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in this petition concerning the finding of unsuitability for
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parole, Petitioner’s motion is DISREGARDED as moot, because the
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case is proceeding on those claims.
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Insofar as Petitioner’s motion concerns any claims involving
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a challenge to Petitioner’s Riverside County convictions,
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Petitioner’s motion is DENIED because the Court has previously
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declined to stay the present proceedings, and the Court has
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further ruled that those claims are not properly included in this
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proceeding.
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III.

Consideration of Dismissal of the Petition

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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 the Court to make
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a preliminary review of each petition for writ of habeas corpus.
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The Court must summarily dismiss a petition "[i]f it plainly
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appears from the petition and any attached exhibits that the
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petitioner is not entitled to relief in the district court....”
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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.
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1990).

Habeas Rule 2(c) requires that a petition 1) specify all

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grounds of relief available to the Petitioner; 2) state the facts

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supporting each ground; and 3) state the relief requested.

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Notice pleading is not sufficient; rather, the petition must

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state facts that point to a real possibility of constitutional

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error.

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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.

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Allison, 431 U.S. 63, 75 n.7 (1977)).

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that are vague, conclusory, or palpably incredible are subject to

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summary dismissal.

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Rule 4, Advisory Committee Notes, 1976 Adoption;

Allegations in a petition

Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

Cir. 1990).
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).

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Advisory Committee Notes to Habeas Rule

Here, Respondent answered the petition on January 18, 2011,

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and Petitioner filed a traverse and related documents in late

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January and early February 2011.

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answer, the United States Supreme Court decided Swarthout v.

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

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Swarthout appears to govern the instant case, and as no motion to

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dismiss the petition has been filed, the Court proceeds to

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consider whether the petition states a cognizable claim for

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relief.

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IV.

After Respondent filed the

Because

Failure to State a Cognizable Due Process Claim
A.

The Allegations of the Petition

Petitioner alleges that he is an inmate of the Substance
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Abuse Treatment Facility (SATF) at Corcoran, California, serving

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a sentence of fifteen (15) years to life imposed by the Riverside

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County Superior Court in July 1990 for Petitioner’s conviction of

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murder in violation of Cal. Pen. Code § 187.

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petition, Petitioner challenges the decision of California’s

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Board of Parole Hearings (BPH) made after a hearing held on March

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25, 2009, denying Petitioner parole on the ground that he was

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unsuitable for parole.

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board’s decision that Petitioner posed an unreasonable risk to

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the safety of others if he were released on parole lacked the

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support of any evidence.

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evidence concerning his parole suitability merited a grant of

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parole.

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incarcerated, his psychological evaluation stated that he

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presented a moderate or below-average risk of violence, and he

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expressed insight and remorse for his crime.

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(Pet. 4.)

(Pet. 1.)

In the

Petitioner’s claim is that the

Petitioner essentially argues that the

He argues that he committed only minor infractions while

(Pet. 4.)

Petitioner attached to his petition the transcript of the

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hearing held on March 25, 2009, before the BPH.

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12-60.)

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hearing (pet. 12, 15); received documents before the hearing and

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was afforded an opportunity to correct or clarify the record

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reflected in Petitioner’s central file and prior transcripts

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(pet. 17, 19); addressed the board concerning numerous factors of

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parole suitability (pet. 20-46); and personally made a statement

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to the board in favor of release on parole (pet. 51-52).

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Further, an attorney appeared and advocated on Petitioner’s

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behalf, making a closing statement in favor of parole.

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15, 18, 47-51.)

(Pet., doc. 1,

The transcript shows that Petitioner attended the

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(Pet. 12,

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The transcript also reflects that Petitioner was present

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when the board explained the reasons underlying its decision to

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deny parole for five years, which included the commitment offense

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(murder and robbery of a man who had offered Petitioner a job and

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had furnished him dinner), Petitioner’s history of criminality

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and drug use, his unstable social history, previous failures on

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probation, a poor disciplinary record in prison, and minimization

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of the crime and failure to take responsibility for his

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misbehavior.

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B.

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(Pet. 53-60.)
Analysis

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

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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. 28

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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

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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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

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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
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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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.

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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.

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The Court in Swarthout expressly

Id. at 862-63.

Petitioner asks this Court to engage in the very type of

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analysis foreclosed by Swarthout.

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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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Petitioner does not state

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

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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).

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

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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

It is clear from the allegations in the petition and the

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documentation submitted in support of the petition that

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Petitioner attended the parole suitability hearing, made

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statements to the BPH, and received a statement of reasons for

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the decisions of the BPH and the governor.

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own petition establishes that he had an opportunity to be heard

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and a statement of reasons for the decisions in question.

Thus, Petitioner’s

It

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therefore does not appear that Petitioner could state a tenable

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due process claim.

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

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V.

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On January 24, 2011, Petitioner filed a motion for dismissal

Petitioner’s Motion to Dismiss/Default Judgment

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or default judgment because Respondent failed to respond to the

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Court’s order to show cause that issued on November 18, 2010.

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(Doc. 20.)

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The Court’s order in question was docketed on November 19,

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2010, and it 1) discharged a previous order to show cause; 2)

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denied Petitioner’s motion for stay and abeyance; and 3) directed

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Respondent to file a response to the petition.

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a response in the form of an answer on January 18, 2011, within

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the sixty-day period permitted in the order (doc. 12, 5:15-16;

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doc. 19).

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Court’s order.

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Respondent filed

Respondent is not in default with respect to the

Accordingly, it will be RECOMMENDED that Petitioner’s motion
for dismissal or default judgment be denied.
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VI.

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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

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of a constitutional right.

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

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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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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.

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Cockrell, 537 U.S. at 338.

Id.

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It is necessary for an

Miller-El v.

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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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Petitioner has not made a substantial showing

Therefore, it will be recommended that the Court decline to
issue a certificate of appealability.

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VII.

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Accordingly, it is RECOMMENDED that:

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1)

Recommendation

The petition be DISMISSED without leave to amend for

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Petitioner’s failure to state a claim entitling him to relief in

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a proceeding pursuant to 28 U.S.C. § 2254; and

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2)

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DENIED; and

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3)

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Petitioner’s motion for dismissal or default judgment be

The Court decline to issue a certificate of

appealability; and
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The Clerk be DIRECTED to close the case because an order

of dismissal would terminate the action 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 17, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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