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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 STEVEN DEAN PARKS, 11 Petitioner, 12 13 14 v. KATHLEEN ALLISON, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 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) 17 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), 22 Petitioner has consented to the jurisdiction of the United States 23 Magistrate Judge to conduct all further proceedings in the case, 24 including the entry of final judgment, by manifesting consent in 25 a signed writing filed by Petitioner on May 27, 2010 (doc. 7). 26 Pending before the Court is the petition, which was filed on May 27 12, 2010. Respondent answered the petition on January 18, 2011, 28 1 1 and Petitioner filed a traverse on January 28, 2011, with 2 supplemental replies filed on February 3, 7, and 9, 2011. 3 I. 4 The petition challenges on due process grounds decisions 5 upholding a finding that Petitioner was unsuitable for parole 6 made by state parole authorities at the Corcoran State Prison on 7 March 25, 2009. 8 name a proper respondent was effected on September 8, 2010. 9 Petitioner attempted to stay these proceedings to permit 10 exhaustion in the state courts of claims concerning his 11 conviction of criminal offenses in Riverside, which Petitioner 12 sought to have included in the present proceeding. 13 19, 2010, Petitioner’s motion for stay and abeyance of these 14 proceedings was denied because Petitioner’s claims concerning his 15 Riverside County robbery convictions, which were sustained in the 16 Central District of California, were not properly brought in this 17 district. 18 266 (C.D.Cal. 1968). 19 County sentence would concern a different judgment, and thus 20 would not properly be included in this petition. 21 the Rules Governing Section 2254 Cases in the United States 22 District Courts (Habeas Rules); Bianchi v. Blodgett, 925 F.2d 23 305, 308-11 (9th Cir. 1991); Williams v. Sisto, 2009 WL 3300038, 24 *12 (E.D.Cal. Oct. 14, 2009). 25 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 26 answer, Respondent admitted that Petitioner exhausted his claim 27 that the parole decision was not supported by some evidence. 28 (Doc. 19, 2:9-12.) 2 1 II. Disregard and Denial of Petitioner’s Motion to Continue the Proceedings 2 On November 24, 2010, Petitioner filed a motion to continue 3 the petition, which he characterized as having been stayed or 4 abated. Because the petition in this action was not stayed, the 5 basis for the motion is unclear. Petitioner states in the 6 application that all state court remedies have now been 7 exhausted. (Doc. 15, 1.) 8 As Petitioner’s motion concerns the claim or claims pending 9 in this petition concerning the finding of unsuitability for 10 parole, Petitioner’s motion is DISREGARDED as moot, because the 11 case is proceeding on those claims. 12 Insofar as Petitioner’s motion concerns any claims involving 13 a challenge to Petitioner’s Riverside County convictions, 14 Petitioner’s motion is DENIED because the Court has previously 15 declined to stay the present proceedings, and the Court has 16 further ruled that those claims are not properly included in this 17 proceeding. 18 III. Consideration of Dismissal of the Petition 19 Rule 4 of the Rules Governing § 2254 Cases in the United 20 States District Courts (Habeas Rules) requires the Court to make 21 a preliminary review of each petition for writ of habeas corpus. 22 The Court must summarily dismiss a petition "[i]f it plainly 23 appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court....” 25 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 26 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 27 1990). Habeas Rule 2(c) requires that a petition 1) specify all 28 3 1 grounds of relief available to the Petitioner; 2) state the facts 2 supporting each ground; and 3) state the relief requested. 3 Notice pleading is not sufficient; rather, the petition must 4 state facts that point to a real possibility of constitutional 5 error. 6 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 7 Allison, 431 U.S. 63, 75 n.7 (1977)). 8 that are vague, conclusory, or palpably incredible are subject to 9 summary dismissal. 10 11 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 12 corpus either on its own motion under Habeas Rule 4, pursuant to 13 the respondent's motion to dismiss, or after an answer to the 14 petition has been filed. 15 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 16 (9th Cir. 2001). 17 Advisory Committee Notes to Habeas Rule Here, Respondent answered the petition on January 18, 2011, 18 and Petitioner filed a traverse and related documents in late 19 January and early February 2011. 20 answer, the United States Supreme Court decided Swarthout v. 21 Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 22 Swarthout appears to govern the instant case, and as no motion to 23 dismiss the petition has been filed, the Court proceeds to 24 consider whether the petition states a cognizable claim for 25 relief. 26 27 28 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 4 1 Abuse Treatment Facility (SATF) at Corcoran, California, serving 2 a sentence of fifteen (15) years to life imposed by the Riverside 3 County Superior Court in July 1990 for Petitioner’s conviction of 4 murder in violation of Cal. Pen. Code § 187. 5 petition, Petitioner challenges the decision of California’s 6 Board of Parole Hearings (BPH) made after a hearing held on March 7 25, 2009, denying Petitioner parole on the ground that he was 8 unsuitable for parole. 9 board’s decision that Petitioner posed an unreasonable risk to 10 the safety of others if he were released on parole lacked the 11 support of any evidence. 12 evidence concerning his parole suitability merited a grant of 13 parole. 14 incarcerated, his psychological evaluation stated that he 15 presented a moderate or below-average risk of violence, and he 16 expressed insight and remorse for his crime. 17 (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 18 hearing held on March 25, 2009, before the BPH. 19 12-60.) 20 hearing (pet. 12, 15); received documents before the hearing and 21 was afforded an opportunity to correct or clarify the record 22 reflected in Petitioner’s central file and prior transcripts 23 (pet. 17, 19); addressed the board concerning numerous factors of 24 parole suitability (pet. 20-46); and personally made a statement 25 to the board in favor of release on parole (pet. 51-52). 26 Further, an attorney appeared and advocated on Petitioner’s 27 behalf, making a closing statement in favor of parole. 28 15, 18, 47-51.) (Pet., doc. 1, The transcript shows that Petitioner attended the 5 (Pet. 12, 1 The transcript also reflects that Petitioner was present 2 when the board explained the reasons underlying its decision to 3 deny parole for five years, which included the commitment offense 4 (murder and robbery of a man who had offered Petitioner a job and 5 had furnished him dinner), Petitioner’s history of criminality 6 and drug use, his unstable social history, previous failures on 7 probation, a poor disciplinary record in prison, and minimization 8 of the crime and failure to take responsibility for his 9 misbehavior. 10 B. 11 (Pet. 53-60.) Analysis Because the petition was filed after April 24, 1996, the 12 effective date of the Antiterrorism and Effective Death Penalty 13 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 14 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 15 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 16 A district court may entertain a petition for a writ of 17 habeas corpus by a person in custody pursuant to the judgment of 18 a state court only on the ground that the custody is in violation 19 of the Constitution, laws, or treaties of the United States. 28 20 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 21 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 22 16 (2010) (per curiam). 23 Lindh The Supreme Court has characterized as reasonable the 24 decision of the Court of Appeals for the Ninth Circuit that 25 California law creates a liberty interest in parole protected by 26 the Fourteenth Amendment Due Process Clause, which in turn 27 requires fair procedures with respect to the liberty interest. 28 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 6 1 However, the procedures required for a parole determination 2 are the minimal requirements set forth in Greenholtz v. Inmates 3 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 4 Swarthout v. Cooke, 131 S.Ct. 859, 862. 5 rejected inmates’ claims that they were denied a liberty interest 6 because there was an absence of “some evidence” to support the 7 decision to deny parole. 8 9 10 11 12 13 14 15 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.) 16 Swarthout, 131 S.Ct. 859, 862. 17 petitioners had received the process that was due as follows: 18 19 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 20 1 21 22 23 24 25 26 27 28 In Greenholtz, the Court held that a formal hearing is not required with respect to a decision concerning granting or denying discretionary parole; it is sufficient to permit the inmate to have an opportunity to be heard and to be given a statement of reasons for the decision made. Id. at 16. The decision maker is not required to state the evidence relied upon in coming to the decision. Id. at 15-16. The Court reasoned that because there is no constitutional or inherent right of a convicted person to be released conditionally before expiration of a valid sentence, the liberty interest in discretionary parole is only conditional and thus differs from the liberty interest of a parolee. Id. at 9. Further, the discretionary decision to release one on parole does not involve restrospective factual determinations, as in disciplinary proceedings in prison; instead, it is generally more discretionary and predictive, and thus procedures designed to elicit specific facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due process was satisfied where the inmate received a statement of reasons for the decision and had an effective opportunity to insure that the records being considered were his records, and to present any special considerations demonstrating why he was an appropriate candidate for parole. Id. at 15. 7 1 as to the reasons why parole was denied.... 2 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 3 4 Swarthout, 131 S.Ct. at 862. 5 noted that California’s “some evidence” rule is not a substantive 6 federal requirement, and correct application of California’s 7 “some evidence” standard is not required by the federal Due 8 Process Clause. 9 The Court in Swarthout expressly Id. at 862-63. Petitioner asks this Court to engage in the very type of 10 analysis foreclosed by Swarthout. 11 facts that point to a real possibility of constitutional error or 12 that otherwise would entitle Petitioner to habeas relief because 13 California’s “some evidence” requirement is not a substantive 14 federal requirement. 15 support the denial of parole is not within the scope of this 16 Court’s habeas review under 28 U.S.C. § 2254. 17 Petitioner does not state Review of the record for “some evidence” to Petitioner cites state law concerning the appropriate weight 18 to be given to evidence. 19 or claims rest on state law, they are not cognizable on federal 20 habeas corpus. 21 state issue that does not rise to the level of a federal 22 constitutional violation. 23 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 24 (1991). 25 cognizable in federal habeas corpus. 26 616, 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 27 A petition for habeas corpus should not be dismissed without 28 leave to amend unless it appears that no tenable claim for relief 8 1 can be pleaded were such leave granted. 2 F.2d 13, 14 (9th Cir. 1971). 3 Jarvis v. Nelson, 440 It is clear from the allegations in the petition and the 4 documentation submitted in support of the petition that 5 Petitioner attended the parole suitability hearing, made 6 statements to the BPH, and received a statement of reasons for 7 the decisions of the BPH and the governor. 8 own petition establishes that he had an opportunity to be heard 9 and a statement of reasons for the decisions in question. Thus, Petitioner’s It 10 therefore does not appear that Petitioner could state a tenable 11 due process claim. 12 13 Accordingly, it will be recommended that the petition be dismissed without leave to amend. 14 V. 15 On January 24, 2011, Petitioner filed a motion for dismissal Petitioner’s Motion to Dismiss/Default Judgment 16 or default judgment because Respondent failed to respond to the 17 Court’s order to show cause that issued on November 18, 2010. 18 (Doc. 20.) 19 The Court’s order in question was docketed on November 19, 20 2010, and it 1) discharged a previous order to show cause; 2) 21 denied Petitioner’s motion for stay and abeyance; and 3) directed 22 Respondent to file a response to the petition. 23 a response in the form of an answer on January 18, 2011, within 24 the sixty-day period permitted in the order (doc. 12, 5:15-16; 25 doc. 19). 26 Court’s order. 27 28 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. 9 1 VI. 2 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 3 appealability, an appeal may not be taken to the Court of Appeals 4 from the final order in a habeas proceeding in which the 5 detention complained of arises out of process issued by a state 6 court. 7 U.S. 322, 336 (2003). 8 only if the applicant makes a substantial showing of the denial 9 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 10 petitioner must show that reasonable jurists could debate whether 11 the petition should have been resolved in a different manner or 12 that the issues presented were adequate to deserve encouragement 13 to proceed further. 14 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 15 certificate should issue if the Petitioner shows that jurists of 16 reason would find it debatable whether the petition states a 17 valid claim of the denial of a constitutional right and that 18 jurists of reason would find it debatable whether the district 19 court was correct in any procedural ruling. 20 529 U.S. 473, 483-84 (2000). 21 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 22 the claims in the habeas petition, generally assesses their 23 merits, and determines whether the resolution was debatable among 24 jurists of reason or wrong. 25 applicant to show more than an absence of frivolity or the 26 existence of mere good faith; however, it is not necessary for an 27 applicant to show that the appeal will succeed. 28 Cockrell, 537 U.S. at 338. Id. 10 It is necessary for an Miller-El v. 1 A district court must issue or deny a certificate of 2 appealability when it enters a final order adverse to the 3 applicant. 4 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 5 debate whether the petition should have been resolved in a 6 different manner. 7 of the denial of a constitutional right. 8 9 Petitioner has not made a substantial showing Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 10 VII. 11 Accordingly, it is RECOMMENDED that: 12 1) Recommendation The petition be DISMISSED without leave to amend for 13 Petitioner’s failure to state a claim entitling him to relief in 14 a proceeding pursuant to 28 U.S.C. § 2254; and 15 2) 16 DENIED; and 17 3) 18 19 20 Petitioner’s motion for dismissal or default judgment be The Court decline to issue a certificate of appealability; and 4) The Clerk be DIRECTED to close the case because an order of dismissal would terminate the action in its entirety. 21 These findings and recommendations are submitted to the 22 United States District Court Judge assigned to the case, pursuant 23 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 24 the Local Rules of Practice for the United States District Court, 25 Eastern District of California. 26 being served with a copy, any party may file written objections 27 with the Court and serve a copy on all parties. 28 should be captioned “Objections to Magistrate Judge’s Findings Within thirty (30) days after 11 Such a document 1 and Recommendations.” 2 and filed within fourteen (14) days (plus three (3) days if 3 served by mail) after service of the objections. 4 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 5 636 (b)(1)(C). 6 objections within the specified time may waive the right to 7 appeal the District Court’s order. 8 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 9 10 IT IS SO ORDERED. 11 Dated: ie14hj May 17, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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