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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEO SISCO,

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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-01723 OWW MJS HC
FINDINGS AND RECOMMENDATION
REGARDING RESPONDENT'S MOTION
TO DISMISS
(Doc. 14)

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Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On September 17, 2010, Petitioner filed the instant petition for

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writ of habeas corpus. Petitioner challenges the California court decisions upholding a

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November 13, 2008, decision of the California Board of Parole Hearings. Petitioner claims the

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California courts unreasonably determined that there was some evidence he posed a current

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risk of danger to the public if released. Respondent has filed a motion to dismiss. For the

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reasons explained below, the motion to dismiss should be granted.

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California’s statutory parole scheme guarantees that prisoners will not be denied parole

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absent some evidence of present dangerousness. Accordingly, the Ninth Circuit Court of

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Appeals held that California law creates a liberty interest in parole that may be enforced under

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the Due Process Clause. Hayward v. Marshall, 602 F.3d 546, 561-563 (9th Cir. 2010);

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Pearson v. Muntz, 606 F.3d 606, 608-609 (9th Cir. 2010); Cooke v. Solis, 606 F.3d 1206, 1213

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(9th Cir. 2010), rev’d, Swarthout v. Cooke, ___ U.S.___, 131 S. Ct. 859 (2011). The Ninth

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Circuit instructed reviewing federal district courts to determine whether California’s application

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of California’s “some evidence” rule was unreasonable or was based on an unreasonable

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determination of the facts in light of the evidence. Hayward, 603 F.3d at 563; Pearson, 606

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F.3d at 608.

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On January 24, 2011, the Supreme Court issued a per curiam opinion in Swarthout v.

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Cooke, 131 S. Ct. 859 (2011). In Swarthout, the Supreme Court held that “the responsibility

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for assuring that the constitutionally adequate procedures governing California’s parole system

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are properly applied rests with California courts, and is no part of the Ninth Circuit’s business.”

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Id. at 863. The federal habeas court’s inquiry into whether a prisoner denied parole received

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due process is limited to determining whether the prisoner “was allowed an opportunity to be

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heard and was provided a statement of the reasons why parole was denied.” Id. at 862, citing,

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Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979).

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Review of the instant case reveals Petitioner and Petitioner's counsel were present at the

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parole hearing, they were given an opportunity to be heard, and were provided a statement

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of reasons for the parole board’s decision. (See Pet. Ex. D, ECF No. 1-2.) According to the

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Supreme Court, this is “the beginning and the end of the federal habeas courts’ inquiry into

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whether [the petitioner] received due process.” Swarthout, 131 S. Ct. at 862. “The Constitution

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does not require more [process].” Greenholtz, 442 U.S. at 16.

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Given the holding in Swarthout, this Court must and does conclude that the instant

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petition does not present cognizable claims for relief. Accordingly, the Court recommends

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Respondent's motion to dismiss be granted.
RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be
GRANTED.

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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 the date of service of this Findings and Recommendation, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Replies to the Objections shall be served and filed within fourteen (14)

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days after service of the Objections. The Finding and Recommendation will then be submitted

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to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636

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(b)(1)(c). The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:
92b0h

June 3, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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