Sisco v. Hartley

Filing 17

FINDINGS And RECOMMENDATIONS Regarding Respondent's Motion To Dismiss (Doc. 14 ), signed by Magistrate Judge Michael J. Seng on 6/3/2011. The Court HEREBY RECOMMENDS that the motion to dismiss be GRANTED. F&R's referred to Judge Oliver W. Wanger; Objections to F&R due by 7/11/2011. (Fahrney, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 LEO SISCO, ) ) Petitioner, ) ) v. ) ) ) JAMES D. HARTLEY, Warden, ) ) Respondent. ) ) ________________________________) 1:10-cv-01723 OWW MJS HC FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS (Doc. 14) 16 17 Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. On September 17, 2010, Petitioner filed the instant petition for 19 writ of habeas corpus. Petitioner challenges the California court decisions upholding a 20 November 13, 2008, decision of the California Board of Parole Hearings. Petitioner claims the 21 California courts unreasonably determined that there was some evidence he posed a current 22 risk of danger to the public if released. Respondent has filed a motion to dismiss. For the 23 reasons explained below, the motion to dismiss should be granted. 24 California’s statutory parole scheme guarantees that prisoners will not be denied parole 25 absent some evidence of present dangerousness. Accordingly, the Ninth Circuit Court of 26 Appeals held that California law creates a liberty interest in parole that may be enforced under 27 the Due Process Clause. Hayward v. Marshall, 602 F.3d 546, 561-563 (9th Cir. 2010); 28 Pearson v. Muntz, 606 F.3d 606, 608-609 (9th Cir. 2010); Cooke v. Solis, 606 F.3d 1206, 1213 U .S. D istrict C ourt E. D . C alifornia -1- 1 (9th Cir. 2010), rev’d, Swarthout v. Cooke, ___ U.S.___, 131 S. Ct. 859 (2011). The Ninth 2 Circuit instructed reviewing federal district courts to determine whether California’s application 3 of California’s “some evidence” rule was unreasonable or was based on an unreasonable 4 determination of the facts in light of the evidence. Hayward, 603 F.3d at 563; Pearson, 606 5 F.3d at 608. 6 On January 24, 2011, the Supreme Court issued a per curiam opinion in Swarthout v. 7 Cooke, 131 S. Ct. 859 (2011). In Swarthout, the Supreme Court held that “the responsibility 8 for assuring that the constitutionally adequate procedures governing California’s parole system 9 are properly applied rests with California courts, and is no part of the Ninth Circuit’s business.” 10 Id. at 863. The federal habeas court’s inquiry into whether a prisoner denied parole received 11 due process is limited to determining whether the prisoner “was allowed an opportunity to be 12 heard and was provided a statement of the reasons why parole was denied.” Id. at 862, citing, 13 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). 14 Review of the instant case reveals Petitioner and Petitioner's counsel were present at the 15 parole hearing, they were given an opportunity to be heard, and were provided a statement 16 of reasons for the parole board’s decision. (See Pet. Ex. D, ECF No. 1-2.) According to the 17 Supreme Court, this is “the beginning and the end of the federal habeas courts’ inquiry into 18 whether [the petitioner] received due process.” Swarthout, 131 S. Ct. at 862. “The Constitution 19 does not require more [process].” Greenholtz, 442 U.S. at 16. 20 Given the holding in Swarthout, this Court must and does conclude that the instant 21 petition does not present cognizable claims for relief. Accordingly, the Court recommends 22 Respondent's motion to dismiss be granted. RECOMMENDATION 23 24 25 Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be GRANTED. 26 This Findings and Recommendation is submitted to the assigned United States District 27 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 28 Local Rules of Practice for the United States District Court, Eastern District of California. U .S. D istrict C ourt E. D . C alifornia -2- 1 Within thirty (30) days after the date of service of this Findings and Recommendation, any 2 party may file written objections with the Court and serve a copy on all parties. Such a 3 document should be captioned “Objections to Magistrate Judge’s Findings and 4 Recommendation.” Replies to the Objections shall be served and filed within fourteen (14) 5 days after service of the Objections. The Finding and Recommendation will then be submitted 6 to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 7 (b)(1)(c). The parties are advised that failure to file objections within the specified time may 8 waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th 9 Cir. 1991). 10 11 IT IS SO ORDERED. 12 Dated: 92b0h June 3, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia -3-

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