Rivera v. Hartley
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Petitioner's Due Process Claim Without Leave to Amend 1 ; Findings and Recommendations to Deny Petitioner's First Amendment Claim 1 ; Findings and Recommendations to Decline to Issue Certificate of Appealability and to Direct the Entry of Judgment for Respondent, signed by Magistrate Judge Sandra M. Snyder on 5/9/11. Referred to Judge O'Neill. Objections Deadline: Thirty (30) Days (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FRANK RIVERA,
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Petitioner,
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v.
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JAMES D. HARTLEY, Warden,
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Respondent.
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1:10-cv—01320-LJO-SMS-HC
FINDINGS AND RECOMMENDATIONS
TO DISMISS PETITIONER’S DUE
PROCESS CLAIM WITHOUT LEAVE TO
AMEND (Doc. 1)
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S FIRST AMENDMENT
CLAIM (Doc. 1)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE
OF APPEALABILITY AND TO DIRECT
THE ENTRY OF JUDGMENT FOR
RESPONDENT
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OBJECTIONS DEADLINE:
THIRTY (30) DAYS
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20
Petitioner is a state prisoner proceeding pro se and in
21
forma pauperis with a petition for writ of habeas corpus pursuant
22
to 28 U.S.C. § 2254.
The matter has been referred to the
23
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
24
Rules 302 and 304.
Pending before the Court is the petition
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filed on July 22, 2010,
Respondent filed an answer to the
26
petition on November 12, 2010, and Petitioner filed a traverse on
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December 30, 2010.
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1
1
I.
2
Rule 4 of the Rules Governing § 2254 Cases in the United
Consideration of Dismissal of the Petition
3
States District Courts (Habeas Rules) requires the Court to make
4
a preliminary review of each petition for writ of habeas corpus.
5
The Court must summarily dismiss a petition "[i]f it plainly
6
appears from the petition and any attached exhibits that the
7
petitioner is not entitled to relief in the district court....”
8
Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
9
1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.
10
1990).
11
grounds of relief available to the Petitioner; 2) state the facts
12
supporting each ground; and 3) state the relief requested.
13
Notice pleading is not sufficient; rather, the petition must
14
state facts that point to a real possibility of constitutional
15
error.
16
O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.
17
Allison, 431 U.S. 63, 75 n.7 (1977)).
18
that are vague, conclusory, or palpably incredible are subject to
19
summary dismissal.
20
Cir. 1990).
21
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
22
corpus either on its own motion under Habeas Rule 4, pursuant to
23
the respondent's motion to dismiss, or after an answer to the
24
petition has been filed.
25
8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43
26
(9th Cir. 2001).
Advisory Committee Notes to Habeas Rule
27
Here, after Respondent and Petitioner filed the answer and
28
traverse, respectively, the United States Supreme Court decided
2
1
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
2
Because Swarthout appears to apply in the instant case, and
3
because no motion to dismiss any claims in the petition has been
4
filed, the Court proceeds to consider whether the petition states
5
a cognizable claim for relief.
6
II.
7
Petitioner alleges that he is an inmate of Avenal State
Background
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Prison who is serving a sentence of fifteen (15) years to life
9
plus five (5) years imposed by the Los Angeles County Superior
10
Court in June 1989 upon Petitioner’s conviction for second degree
11
murder with an enhancement for a prior serious felony conviction
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in violation of Cal. Pen. Code §§ 187 and 667.
13
(Pet. 2.)
Petitioner challenges the decision of California’s Board of
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Parole Hearings (BPH) made after a hearing held on March 25,
15
2008, finding Petitioner unsuitable for release on parole, which
16
was upheld in the state courts.
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the following claims in the petition:
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due process of law was violated by the BPH’s decision that he was
19
unsuitable for parole because the decision was not supported by
20
some evidence that Petitioner would present a continuing,
21
unreasonable risk of danger to society if released; and 2) the
22
BPH violated Petitioner’s rights under the Establishment Clause
23
of the First Amendment by relying on Petitioner’s lack of
24
participation in AA or NA programs as a basis for concluding that
25
Petitioner would pose an unreasonable danger to public safety if
26
released.
27
28
(Pet. 9-11.)
1)
Petitioner raises
Petitioner’s right to
In connection with the answer, Respondent submitted a
transcript of the BPH hearing held on March 25, 2008.
3
(Ans.,
1
doc. 13-1, 46-80, doc. 13-2, 2-32.)
2
reflects that Petitioner attended the hearing with counsel, who
3
submitted documents and advocated on Petitioner’s behalf.
4
13-1, 46, 48, 58, 61-62; doc. 13-2, 22-23.)
5
opportunity to speak to the BPH regarding numerous suitability
6
factors (doc. 13-1 at 61-80; doc. 13-2, 2-20) and make a
7
statement personally to the board in support of his application
8
for parole (doc. 13-2, 23-25).
Review of the transcript
(Doc.
Petitioner had an
9
Further, the transcript reflects that Petitioner was present
10
when the BPH stated its reasons for finding Petitioner unsuitable
11
for parole, which included the commitment offense, Petitioner’s
12
history of prior convictions and failures on probation,
13
Petitioner’s failure to upgrade vocationally or participate in
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beneficial self-help and therapy programming, an inconclusive
15
psychological evaluation, lack of viable residential and
16
employment plans for parole, and the District Attorney’s
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opposition to parole.
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GED, a long and favorable work record, and only one disciplinary
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violation.
Petitioner was commended for having his
(Doc. 13-2, 26-32.)
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III.
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The Supreme Court has characterized as reasonable the
Failure to State a Cognizable Due Process Claim
22
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.
26
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
27
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However, the procedures required for a parole determination
are the minimal requirements set forth in Greenholtz v. Inmates
4
1
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1
2
Swarthout v. Cooke, 131 S.Ct. 859, 862.
3
rejected inmates’ claims that they were denied a liberty interest
4
because there was an absence of “some evidence” to support the
5
decision to deny parole.
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10
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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.)
14
Swarthout, 131 S.Ct. 859, 862.
15
petitioners had received the process that was due as follows:
16
17
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
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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.
5
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[the petitioners] received due process.
2
Swarthout, 131 S.Ct. at 862.
3
noted that California’s “some evidence” rule is not a substantive
4
federal requirement, and correct application of California’s
5
“some evidence” standard is not required by the Federal Due
6
Process Clause.
7
The Court in Swarthout expressly
Id. at 862-63.
Here, Petitioner challenges the application of California’s
8
“some evidence” standard in his first claim.
9
complains of the board’s weighing of various items of evidence
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concerning Petitioner’s parole suitability, and he asserts that
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the board improperly relied upon his commitment offense.
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Petitioner also argues that the board erroneously applied
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applicable state law concerning parole suitability.
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Petitioner
Petitioner’s contentions concerning his due process claim
15
boil down to arguments that the board improperly applied the
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“some evidence” standard or that there was an absence of some
17
evidence to support the finding that Petitioner was not suitable.
18
In this respect, Petitioner asks this Court to engage in the very
19
type of analysis foreclosed by Swarthout.
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state facts that point to a real possibility of constitutional
21
error or that otherwise would entitle Petitioner to habeas relief
22
because California’s “some evidence” requirement is not a
23
substantive federal requirement.
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evidence” to support the denial of parole is not within the scope
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of this Court’s habeas review under 28 U.S.C. § 2254.
26
Petitioner does not
Review of the record for “some
Petitioner cites state law concerning procedures and factors
27
of parole suitability and the appropriate weight to be given to
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evidence.
To the extent that Petitioner’s claim or claims rest
6
1
on state law, they are not cognizable on federal habeas corpus.
2
Federal habeas relief is not available to retry a state issue
3
that does not rise to the level of a federal constitutional
4
violation.
5
(2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
6
errors in the application of state law are not cognizable in
7
federal habeas corpus.
8
Cir. 2002).
Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16
Alleged
Souch v. Schiavo, 289 F.3d 616, 623 (9th
9
A petition for habeas corpus should not be dismissed without
10
leave to amend unless it appears that no tenable claim for relief
11
can be pleaded were such leave granted.
12
F.2d 13, 14 (9th Cir. 1971).
13
Jarvis v. Nelson, 440
Here, it is clear from the allegations in the petition that
14
Petitioner attended the parole suitability hearing, made
15
statements to the BPH, and received a statement of reasons for
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the decisions of the BPH.
17
establish that Petitioner had an opportunity to be heard and
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received a statement of reasons for the decisions in question.
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It therefore does not appear that Petitioner could state a
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tenable due process claim.
21
Thus, the undisputed facts of record
Accordingly, it will be recommended that with respect to
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Petitioner’s first claim that the unsuitability finding violated
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his right under the Fourteenth Amendment to due process of law,
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the petition be dismissed without leave to amend.
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IV.
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Petitioner argues that his rights under the First and
First Amendment
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Fourteenth Amendments were violated by the board’s coercive
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requirement that he participate in religious-based, self-help
7
1
programs to qualify for parole release, and by the board’s having
2
punished him by finding him unsuitable for parole because he
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failed to attend NA or AA.
4
5
A.
(Pet. 17-19.)
Background
At the hearing, Petitioner explained that it was God and not
6
Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) that had
7
helped him stay out of trouble in prison.
8
Presiding Commissioner Davis questioned Petitioner concerning his
9
compliance with the recommendation of the BPH made at a preceding
(Ans., doc. 13-2, 4.)
10
parole hearing that Petitioner avail himself of self-help
11
programs.
12
institution had AA and NA but did not have the type of self-help
13
he needed; further, it was illegal to force an inmate to
14
participate in AA or NA.
15
attorney present then noted that at the previous hearing the
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board had recommended that Petitioner read some books and write
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up some book reports, and the prosecutor asked if Petitioner had
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done that.
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reports were not mandated by the board’s rules, which were not
20
otherwise identified by Petitioner.
21
(Id. at 18.)
(Id. at 19.)
Petitioner responded that the
(Id. at 18-19.)
A deputy district
Petitioner responded that the book
(Id.)
In explaining why it found Petitioner unsuitable for release
22
on parole, the board mentioned that Petitioner had not
23
“sufficiently participated in beneficial self-help.”
24
13-2, 27.)
25
years, the following was stated in pertinent part by Presiding
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Commissioner Davis with respect to Petitioner’s self-help
27
programming:
28
(Ans., doc.
In explaining why parole would be denied for two
You have not sufficiently participated in beneficial
8
1
2
3
4
5
self-help.
....
[It is recommended] [a]s available, that you
participate in self-help, and certainly independent
reading is an option for you. Read self-help books
that applies (sic) to you and your situation. Prepare
a short report, two or three paragraphs, indicating
an understanding of what you read and how it applies
to you, and the Panel will certainly look at that
as part of your programming.
6
(Doc. 13-2, 30-31.)
7
On February 20, 2009, the Los Angeles Superior Court denied
8
petitioner’s petition for writ of habeas corpus, concluding that
9
the board’s reliance on the commitment offense and Petitioner’s
10
violent criminal history was supported by some evidence, and that
11
the board’s reliance on Petitioner’s failure to participate in
12
any self-help programs, including any substance abuse programs,
13
was proper and based on relevant concerns.
(Ans., Ex. 2, doc.
14
13-3, 3-4.)
The California Court of Appeal, Second Appellate
15
District and the California Supreme Court denied petitions for
16
habeas corpus summarily on April 28, 2009, and December 2, 2009,
17
respectively.
(Ans., Exs. 4, 6, docs. 3-6 and 3-9.)
18
B.
Legal Standards
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1.
Habeas Corpus Review
20
Title 28 U.S.C. § 2254 provides:
21
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24
25
26
(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–
(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
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(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
9
1
of the evidence presented in the State court
proceeding.
2
3
4
5
(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.
6
The petitioner bears the burden of establishing that the
7
decision of the state court was contrary to, or involved an
8
unreasonable application of, the precedents of the United States
9
Supreme Court.
Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th
10
Cir. 2004); Baylor v.Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
11
A state court’s decision contravenes clearly established
12
Supreme Court precedent if it reaches a legal conclusion opposite
13
to the Supreme Court's or concludes differently on an
14
indistinguishable set of facts.
Williams v. Taylor, 529 U.S.
15
362, 405-06 (2000).
The state court need not have cited Supreme
16
Court precedent or have been aware of it, "so long as neither the
17
reasoning nor the result of the state-court decision contradicts
18
[it]."
Early v. Packer, 537 U.S. 3, 8 (2002).
The state court
19
unreasonably applies clearly established federal law if it either
20
1) correctly identifies the governing rule but then applies it to
21
a new set of facts in a way that is objectively unreasonable, or
22
2) extends or fails to extend a clearly established legal
23
principle to a new context in a way that is objectively
24
unreasonable.
Hernandez v. Small, 282 F.3d 1132, 1142 (9th
25
Cir.2002); see, Williams, 529 U.S. at 408-09.
An application of
26
law is unreasonable if it is objectively unreasonable; an
27
incorrect or inaccurate application of federal law is not
28
10
1
2
necessarily unreasonable.
Williams, 529 U.S. at 410.
Respondent correctly assumes that there is clearly
3
established precedent from the United States Supreme Court
4
governing Petitioner’s claim as is required by 28 U.S.C.
5
§ 2254(d)(1) in order for Petitioner to be entitled to relief.
6
Inouye v. Kemna, 504 F.3d 705, 713 (9th Cir. 2007) (holding that
7
a state official’s requiring attendance as a condition of parole
8
in drug treatment programs (AA and NA) rooted in a regard for a
9
higher power was not protected by qualified immunity because the
10
law was clearly established based on consistent articulation of
11
the principle that the government may not coerce anyone to
12
support or participate in religion or its exercise, or punish
13
anyone for not so participating, and citing Everson v. Board of
14
Education of Ewing Township, 330 U.S. 1 (1947) and Lee v.
15
Weisman, 505 U.S. 577, 587 (1992)).
16
noted that the basic test for Establishment Clause violations
17
remains that stated in Lemon v. Kurtzman, 403 U.S. 602, 613
18
(1971), namely, that the government acts 1) have a secular
19
legislative purpose, 2) not have a principal or primary effect
20
which either advances or inhibits religion, and 3) not foster an
21
excessive government entanglement with religion.
22
The court concluded that recommending revocation of parole for a
23
parolee’s failure to attend the programs after an order to
24
participate was given was unconstitutionally coercive.
25
713-14.
26
only on lower court decisions but also in part on the decisions
27
of the United States Supreme Court and the absence of any Supreme
28
Court case upholding government-mandated participation in
The court in Inouye further
Id. at 713 n.7.
Id. at
In finding the law clear, the court in Inouye relied not
11
1
2
religious activity in any context.
Id. at 715.
Further, in Turner v. Hickman, 342 F.Supp.2d 887 (E.D.Cal.
3
2004), a Christian inmate alleged that parole authorities
4
expressly conditioned the plaintiff’s eligibility for release on
5
parole in part upon participation in NA.
6
concluded that by repeated application of the “coercion” test set
7
forth in Lee v. Weisman, 505 U.S. 577, 587 (1992), the Supreme
8
Court had made the law clear.
9
expressly telling the plaintiff he needed to participate in NA in
Id. at 890.
This Court
Turner, 342 F.Supp.2d at 894.
By
10
order to be eligible for parole, the state had acted coercively
11
to require participation in a program in which the evidence
12
showed that belief in “God” was a fundamental requirement of
13
participation.
14
prohibited the requirement.
15
Id. at 895-96.
Accordingly, the First Amendment
Id. at 896-99.
However, even if the Court proceeds on an understanding that
16
there is clearly established federal law as determined by the
17
Supreme Court of the United States that prohibits punishing an
18
inmate for failing to participate in AA or NA, or coercing an
19
inmate to participate in NA or AA religious activities, it
20
nevertheless does not appear that Petitioner is entitled to
21
relief.
22
Review of the transcript of the parole hearing supports a
23
conclusion that at the hearing, the board considered not
24
Petitioner’s failure to attend NA or AA, but rather Petitioner’s
25
failure to engage in an alternative regimen of reading pertinent
26
self-help books and reporting on them and their applicability to
27
Petitioner’s situation.
28
considered and accepted Petitioner’s assertion that it would be
It appears that the board had previously
12
1
improper to punish Petitioner for failing to participate in
2
programs such as NA or AA, which involve reliance on a higher
3
power.
4
recommended that Petitioner engage in the specific, alternative
5
form of self-help of independently reading pertinent self-help
6
resources and reporting on them.
7
to do so because he perceived that it was not required in the
8
board’s own rules.
9
was not coerced into attending such programs, and he was not
Further, the record shows that the board had previously
However, Petitioner had failed
Thus, the record establishes that Petitioner
10
punished for failure to attend such programs.
11
board had recommended an alternate form of programming,
12
Petitioner declined to participate because he felt is was not
13
“required.”
14
faith-based program nor punished Petitioner for not having
15
attended such a program, Petitioner has not established that he
16
suffered any improper coercion, punishment, or other violation of
17
his First and Fourteenth Amendment rights.
Instead, when the
Because the board neither required attendance at any
18
In light of these facts, and considering Petitioner’s
19
failure to engage in any self-help programming despite a lengthy
20
history of criminal behavior and abuse of drugs and alcohol, a
21
state court determination that Petitioner had not shown that he
22
had suffered a violation of the Establishment Clause would not
23
have constituted a decision that was contrary to, or involved an
24
unreasonable application of, clearly established federal law, as
25
determined by the Supreme Court of the United States.
26
such a decision would not have been based on an unreasonable
27
determination of the facts in light of the evidence presented in
28
the State court proceeding.
13
Further,
1
Therefore, the Court concludes that Petitioner did not show
2
entitlement to relief with respect to his claim of a violation of
3
the Establishment Clause.
4
5
Accordingly, it will be recommended that Petitioner’s second
claim concerning the Establishment Clause be denied.
6
V.
7
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
8
appealability, an appeal may not be taken to the Court of Appeals
9
from the final order in a habeas proceeding in which the
10
detention complained of arises out of process issued by a state
11
court.
12
U.S. 322, 336 (2003).
13
only if the applicant makes a substantial showing of the denial
14
of a constitutional right.
15
petitioner must show that reasonable jurists could debate whether
16
the petition should have been resolved in a different manner or
17
that the issues presented were adequate to deserve encouragement
18
to proceed further.
19
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
20
certificate should issue if the Petitioner shows that jurists of
21
reason would find it debatable whether the petition states a
22
valid claim of the denial of a constitutional right and that
23
jurists of reason would find it debatable whether the district
24
court was correct in any procedural ruling.
25
529 U.S. 473, 483-84 (2000).
26
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
A
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
27
the claims in the habeas petition, generally assesses their
28
merits, and determines whether the resolution was debatable among
14
1
jurists of reason or wrong.
2
applicant to show more than an absence of frivolity or the
3
existence of mere good faith; however, it is not necessary for an
4
applicant to show that the appeal will succeed.
5
Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
6
A district court must issue or deny a certificate of
7
appealability when it enters a final order adverse to the
8
applicant.
9
Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
10
debate whether the petition should have been resolved in a
11
different manner.
12
of the denial of a constitutional right.
13
14
Petitioner has not made a substantial showing
Therefore, it will be recommended that the Court decline to
issue a certificate of appealability.
15
VI.
16
Accordingly, it is RECOMMENDED that:
17
1)
Recommendations
Petitioner’s first claim concerning a denial of due
18
process caused by the absence of some evidence to support a
19
finding of unsuitability for parole be DISMISSED without leave to
20
amend for failure to state a claim entitling Petitioner to relief
21
pursuant to 28 U.S.C. § 2254; and
22
23
24
25
2)
Petitioner’s second claim concerning a denial of
Petitioner’s First and Fourteenth Amendment rights be DENIED; and
3)
The Court DECLINE to issue a certificate of
appealability; and
26
4)
27
These findings and recommendations are submitted to the
28
United States District Court Judge assigned to the case, pursuant
Judgment be ENTERED for the Respondent.
15
1
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
2
the Local Rules of Practice for the United States District Court,
3
Eastern District of California.
4
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
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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.
Within thirty (30) days after
Such a document
Replies to the objections shall be served
The Court will
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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).
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:
icido3
May 9, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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