Boris Jimenez v. J. Hartley
Filing
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FINDINGS And RECOMMENDATIONS Regarding Respondent's Motion To Dismiss (Doc. 19 ), signed by Magistrate Judge Dennis L. Beck on 4/18/2011. It is RECOMMENDED that: Respondent's motion to dismiss the instant petition for writ of habeas corpus , namely, Petitioner's challenge to the composition of the Board of Parole Commissioners be GRANTED. The Clerk of Court be directed to enter judgment in favor of Respondent. F&R's referred to Judge Oliver W. Wanger; Objections to F&R due by 5/23/2011. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BORIS JIMENEZ,
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1:10-cv-01654-OWW-DLB (HC)
Petitioner,
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FINDINGS AND RECOMMENDATION
REGARDING RESPONDENT’S MOTION TO
DISMISS
v.
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[Doc. 19]
J. HARVEY,
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Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254.
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Petitioner filed the instant petition for writ of habeas corpus on September 13, 2010.
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Petitioner challenges the Board of Parole Hearings’ December 15, 2008 determination finding
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him unsuitable for release. Petitioner contends the Board’s decision violated his federal due
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process rights because it lacked sufficient evidentiary support and because the composition of the
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Board’s commissioners does not comply with California Penal Code section 5075(b), which
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instructs the Governor and California Senate to appoint commissioners who “reflect as nearly as
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possible a cross section of the racial, sexual, and geographic features of the population of the
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State.”
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On February 3, 2011, the Court dismissed Petitioner’s challenge to the sufficiency of the
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evidence in light of the Supreme Court’s decision in Swarthout v. Cooke, __ U.S. __, 131 S.Ct.
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859 (2011) (per curiam). The Court directed Respondent to file a response to Petitioner’s
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challenge to the composition of the Board’s commissioners.
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Respondent filed a motion to dismiss on March 18, 2011. Petitioner filed an opposition
on April 6, 2011, and Respondent filed a reply on April 11, 2011.
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DISCUSSION
I.
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Procedural Grounds for Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a
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petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not
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entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. A
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motion to dismiss is a proper response to such petitions. Id.; White v. Lewis, 874 F.2d 599, 602-
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603 (9th Cir. 1997), superseded by statute on other grounds in Binford v. Rhode, 116 F.3d 396,
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398-399 n.3 (9th Cir. 1997). The rules governing section 2254 proceedings permit the filing of a
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motion to dismiss to avoid “the necessity of filing an answer on the substantive merits of the
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petition.” Rules Governing Section 2254 Cases, Rule 4 advisory committee’s note; Lonchar v.
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Thomas, 517 U.S. 314, 325-326 (1996); White, 874 F.2d at 602. Thus, if the petition fails to
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state a cognizable claim, it may be dismissed without a review of the merits.
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II.
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Review of Petition
“[F]ederal habeas corpus relief does not lie for errors of state law. Swarthout v. Cooke,
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131 S.Ct. at 861 (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)); Pulley v. Harris, 465 U.S.
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37, 41 (1984); Milton v. Wainwright, 407 U.S. 371, 377 (1972). The Antiterrorism and
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Effective Death Penalty Act (AEDPA) precludes relief unless the state inmate can demonstrate a
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constitutional violation based on clearly established federal law as determined by the United
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States Supreme Court. 28 U.S.C. § 2254(a), (d). Petitioner bears the burden of demonstrating
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entitlement to federal habeas corpus relief under section 2254. O’Bremski v. Maass, 915 F.2d
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418, 420 (9th Cir. 1990).
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A.
Failure to State a Cognizable Federal Claim
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Petitioner contends his federal due process rights were violated by the composition of the
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Board’s commissioners. As an initial matter, Petitioner’s claim appears to be based entirely on a
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alleged violation of California Penal Code section 5075(b). Petitioner has not demonstrated that
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the Due Process Clause of the federal Constitution guarantees that he will be considered for
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parole by a Board comprised of commissioners of any particular race, sex, economic status, or
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geographic origin. Absent such clearly established federal law, Petitioner’s claim is based
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entirely on the alleged violation of state law, which is not cognizable via section 2254.
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B.
Failure to Challenge Fact or Duration of Custody
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A federal court may only grant a petition for writ of habeas corpus if the petitioner can
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show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas
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corpus petition is the correct method for a prisoner to challenge the “legality or duration” of his
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confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez,
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411 U.S. 475, 485 (1973); Rules Governing Section 2254 Cases, Rule 1 advisory committee’s
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note. State inmates seeking federal habeas corpus relief are limited to challenging their
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“custody.” 28 U.S.C. § 2254(a). In determining when inmates may bring a habeas petition, “the
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[Supreme] Court has focused on the need to ensure that state prisoners use only habeas corpus
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(or similar state) remedies when they seek to invalidate the duration of their confinement.”
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Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). Therefore, if success on a inmate’s claim does not
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“necessarily spell speedier release, habeas corpus relief is not available. Id. at 81-82 (holding
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federal habeas jurisdiction lacking where petitioner’s challenged parole eligibility and suitability
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procedures); Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (“habeas jurisdiction is absent
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. . . where a successful challenge to a prison condition will not necessarily shorten the prisoner’s
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sentence.”).
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Petitioner’s challenge to the composition of the Board’s commissioner must have a
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sufficient nexus to the fact or duration of his confinement. Bailey v. Hill, 599 F.3d 976, 981 (9th
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Cir. 2010). Any connect between the racial, sexual, economic or geographic background of the
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commissioners and the chance Petitioner would be granted parole is too speculative and
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attenuated to warrant habeas jurisdiction. Furthermore, Petitioner’s claim that the Board’s
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commissioners all have backgrounds in law enforcement is not a circumstance controlled by
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California Penal Code section 5075(b). Nothing in that section requires the Board’s
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commissioners to have a spectrum of employment backgrounds or prohibit the appointment of
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commissioner with law enforcement experience. Moreover, Petitioner has not shown that his
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actual parole hearing was conducted by commissioners with law enforcement backgrounds. The
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presiding commissioner had been a correctional counselor, and the deputy commissioner had no
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law enforcement history. (Ex. 1, to Motion, Board Transcript.) In fact, Petitioner does not allege
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either of the Board commissioners who denied his release were responsible for his arrest or
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prosecution, or had stated prior to his hearing that they considered him unfit for parole release.
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(Pet. at 25.) Therefore, the composition of the Board’s commissioners is not type of severe,
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immediate restraint on liberty that of which habeas corpus relief protects. Bailey, 599 F.3d at
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980 (“The custody requirement of the habeas corpus statute is designed to preserve the writ of
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habeas corpus as a remedy for severe restraints on individual liberty.”).
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RECOMMENDATION
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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Respondent’s motion to dismiss the instant petition for writ of habeas corpus,
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namely, Petitioner’s challenge to the composition of the Board of Parole
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Commissioners be GRANTED; and
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2.
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This Findings and Recommendation is submitted to the assigned United States District
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Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the
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Local Rules of Practice for the United States District Court, Eastern District of California.
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Within thirty (30) days after being served with a copy, any party may file written objections with
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the court and serve a copy on all parties. Such a document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served
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and filed within fourteen (14) days after service of the objections. The Court will then review the
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Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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The Clerk of Court be directed to enter judgment in favor of Respondent.
IT IS SO ORDERED.
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Dated:
3b142a
April 18, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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