Schuster v. Clark
Filing
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FINDINGS and RECOMMENDATIONS to Grant Respondent's 10 MOTION to DISMISS the Petition; FINDINGS and RECOMMENDATION to Dismiss the 1 Petition Without Leave to Amend, to Decline to Issue a Certificate of Appealability, and to Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 5/31/2011, referred to Judge Ishii. Objections to F&R due by 7/5/2011. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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THOMAS C. SCHUSTER,
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Petitioner,
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v.
KEN CLARK, Warden,
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Respondent.
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1:10-cv—01983-AWI-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS THE PETITION
(DOCS. 10, 1)
FINDINGS AND RECOMMENDATIONS
TO DISMISS THE PETITION WITHOUT
LEAVE TO AMEND, TO DECLINE TO
ISSUE A CERTIFICATE OF
APPEALABILITY, AND TO DIRECT THE
CLERK TO CLOSE THE CASE
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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
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Rules 302 and 304.
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motion to dismiss the petition filed on January 28, 2011.
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February 7, 2011, Petitioner filed objections, which were deemed
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to be his opposition to the motion.
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reply.
The matter has been referred to the
Pending before the Court is Respondent’s
On
Respondent did not file a
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I.
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Because the petition was filed after April 24, 1996, the
Proceeding pursuant to Respondent’s Motion to Dismiss
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effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies to the petition.
3
Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d
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1484, 1499 (9th Cir. 1997).
Lindh v.
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A district court may entertain a petition for a writ of
6
habeas corpus by a person in custody pursuant to the judgment of
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a state court only on the ground that the custody is in violation
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of the Constitution, laws, or treaties of the United States.
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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
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16 (2010) (per curiam).
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Rule 4 of the Rules Governing Section 2254 Cases (Habeas
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Rules) allows a district court to dismiss a petition if it
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“plainly appears from the face of the petition and any exhibits
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annexed to it that the petitioner is not entitled to relief in
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the district court....”
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The Ninth Circuit has allowed respondents to file motions to
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dismiss pursuant to Rule 4 instead of answers if the motion to
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dismiss attacks the pleadings by claiming that the petitioner has
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failed to exhaust state remedies or has violated the state’s
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procedural rules.
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420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss
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a petition for failure to exhaust state remedies); White v.
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Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to
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review a motion to dismiss for state procedural default); Hillery
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v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).
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Thus, a respondent may file a motion to dismiss after the Court
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orders the respondent to respond, and the Court should use Rule 4
See, e.g., O’Bremski v. Maass, 915 F.2d 418,
2
1
standards to review a motion to dismiss filed before a formal
2
answer.
3
See, Hillery, 533 F. Supp. at 1194 & n.12.
In this case, upon being directed to respond to the petition
4
by way of answer or motion, Respondent filed the motion to
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dismiss.
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contained in the pleadings and in copies of the official records
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of state parole and judicial proceedings which have been provided
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by the parties, and as to which there is no factual dispute.
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Because Respondent's motion to dismiss is similar in procedural
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standing to motions to dismiss on procedural grounds, the Court
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will review Respondent’s motion to dismiss pursuant to its
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authority under Rule 4.
The material facts pertinent to the motion are
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II.
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In the verified petition, Petitioner alleges that he is an
Background
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inmate of the California Substance Abuse Treatment Facility
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(CSATF) at Corcoran, California, serving a sentence of seventeen
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(17) years to life imposed by the San Bernardino County Superior
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Court upon Petitioner’s conviction in November 1989 of second
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degree murder with use of a firearm in violation of Cal. Pen.
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Code §§ 187 and 12022.5.
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(Pet. 1.)
Petitioner challenges the decision of California’s Board of
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Parole Hearings (BPH) made after a hearing held on January 30,
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2009, finding Petitioner unsuitable for parole and denying parole
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for three years.
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BPH’s miscellaneous decision to schedule Petitioner’s next parole
26
hearing in one year instead of three years, and the decisions of
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the state courts upholding the BPH’s denial of parole.
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(Pet. 4, 10, 135.)
He also challenges the
Petitioner submitted with his petition the transcript of
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1
Petitioner’s parole hearing held on January 30, 2009.
2
154.)
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hearing (pet. 61, 63), received all pertinent documents before
4
the hearing and had an opportunity to correct or clarify anything
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in his records (pet. 66, 68), discussed various factors of parole
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suitability with the board (pet. 69-120), and declined to give a
7
personal statement in his own behalf (pet. 131).
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appeared on Petitioner’s behalf and made a statement in favor of
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parole.
(Pet. 61-
The transcript reflects that Petitioner attended the
An attorney
(Pet. 61, 67-68, 103, 124-31.)
10
Petitioner was also present when the BPH stated its reasons
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for concluding that Petitioner posed a present risk of danger to
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society and a threat to public safety if released, which included
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the commitment offense that BPH characterized as cold-blooded;
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Petitioner’s prior criminality; his minimization of his role in
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the offense and lack of insight; his lack of credibility in
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describing the commitment offense; and the prosecutor’s
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opposition to Petitioner’s release.
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(Pet. 135-53.)
Petitioner further complains of action taken by the BPH on
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April 20, 2009, modifying from three years to one year the period
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of time before another parole hearing would be held.
21
36, 57-60).
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the commitment offense had been carried out in a dispassionate
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and calculated manner; Petitioner’s insistence that the victim
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had threatened him and was pulling a knife when Petitioner fired
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his shotgun; and Petitioner’s failure to understand the nature
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and magnitude of his offense and to demonstrate insight and
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remorse.
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decision, the BPH relied on factors that had not been the subject
(Pet. 35-
In that decision, the BPH relied on the following:
(Pet. 58-59.)
Petitioner argues that in the modified
4
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of findings at the principal parole hearing held in January.
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Further, he argues that there is an absence of some evidence in
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the record to support the findings that the offense was carried
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out in a dispassionate and calculated manner and that Petitioner
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failed to demonstrate insight or remorse.
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Petitioner cites state case law to support his arguments.
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Petitioner argues that pursuant to Cal. Code of Regs., tit. 15,
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§ 2041(h), Petitioner and his appointed attorney should have been
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given an opportunity to respond in writing before the
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(Pet. 36-39.)
miscellaneous decision became final.
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In his opposition, Petitioner admitted that he was given an
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opportunity to be heard at his parole hearing but denies that he
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was given a valid statement of reasons for the decision.
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Petitioner argues that the BPH’s recitation of standardized
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suitability factors and rote statement of the facts of the crime
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were insufficient reasons according to state court decisions
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concerning the appropriate application of the parole laws. (Doc.
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11, 1-2.)
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Petitioner lists the following claims in the petition: 1)
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there was no record evidence of current dangerousness before the
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BPH, and thus its finding of unsuitability was not supported by
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some evidence; 2) the BPH’s reliance on unchanging factors was
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insufficient because the evidence was stale and unreliable; 3)
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the use of facts not found by a jury or admitted to by Petitioner
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violates Petitioner’s understanding of his plea agreement; and 4)
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the state courts’ rulings affirming the BPH’s decision were
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unreasonable determinations of the facts in light of the
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evidence.
(Pet. 4-5.)
The Court notes that Petitioner also
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appears to allege in his third claim that the BPH’s reliance on
2
facts not admitted by Petitioner in his guilty plea or found by a
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jury violated his rights to due process under Apprendi v. New
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Jersey, 530 U.S. 466 (2000).
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6
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(Pet. 33-35.)
Petitioner seeks an evidentiary hearing and an order
directing his release from custody.
III.
(Pet. 42-43.)
Failure to State a Cognizable Due Process Claim
concerning the Evidence
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The Supreme Court has characterized as reasonable the
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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.
13
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
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However, the procedures required for a parole determination
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do not include the full panoply of rights available to a person
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facing criminal charges.
Instead, the procedures required for
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discretionary parole suitability proceedings are the minimal
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requirements set forth in Greenholtz v. Inmates of Neb. Penal and
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Correctional Complex, 442 U.S. 1, 12 (1979).1
Swarthout v.
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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
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1
Cooke, 131 S.Ct. 859, 862.
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inmates’ claims that they were denied a liberty interest because
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there was an absence of “some evidence” to support the decision
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to deny parole.
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In Swarthout, the Court rejected
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.)
13
Swarthout, 131 S.Ct. 859, 862.
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petitioners had received the process that was due as follows:
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16
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
[the petitioners] received due process.
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Swarthout, 131 S.Ct. at 862.
The Court in Swarthout expressly
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noted that California’s “some evidence” rule is not a substantive
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federal requirement, and correct application of California’s
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“some evidence” standard is not required by the Federal Due
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Process Clause.
Id. at 862-63.
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Here, in his first and second claims, Petitioner argues that
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there was a lack of some evidence to support the BPH’s finding of
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unsuitability.
Thus, in these claims, Petitioner asks this Court
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demonstrating why he was an appropriate candidate for parole.
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Id. at 15.
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to engage in the very type of analysis foreclosed by Swarthout.
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Petitioner does not state facts that point to a real possibility
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of constitutional error or that otherwise would entitle
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Petitioner to habeas relief because California’s “some evidence”
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requirement is not a substantive federal requirement.
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the record for “some evidence” to support the denial of parole is
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not within the scope of this Court’s habeas review under 28
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U.S.C. § 2254.
Review of
9
Petitioner cites state law concerning the granting of
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parole, the procedures to be followed in connection with parole
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applications, and the appropriate weight to be given to evidence
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concerning factors of parole suitability.
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Petitioner’s claim or claims rest on state law, they are not
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cognizable on federal habeas corpus.
15
not available to retry a state issue that does not rise to the
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level of a federal constitutional violation.
17
562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502
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U.S. 62, 67-68 (1991).
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state law are not cognizable in federal habeas corpus.
20
Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).
21
To the extent that
Federal habeas relief is
Wilson v. Corcoran,
Alleged errors in the application of
Souch v.
Petitioner complains of the absence of some evidence to
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support the BPH’s later modification of the decision to shorten
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the time before Petitioner’s next suitability hearing.
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respect, Petitioner raises the same types of non-cognizable
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claims, namely, arguments concerning the weight given to the
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evidence and the sufficiency of the evidence to support the BPH’s
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decision.
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evidence” to support the BPH’s decision.
In this
These claims concern whether or not there was “some
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They are subject to
1
dismissal for the same reasons as those supporting dismissal of
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the claims concerning the evidence supporting the BPH’s initial
3
decision.
4
prejudice from the later decision.
Further, Petitioner does not show that he suffered any
5
A petition for habeas corpus should not be dismissed without
6
leave to amend unless it appears that no tenable claim for relief
7
can be pleaded were such leave granted.
8
F.2d 13, 14 (9th Cir. 1971).
9
allegations in the petition that Petitioner attended the parole
Jarvis v. Nelson, 440
Here, it is apparent from the
10
suitability hearing and spoke with the commissioners; he thus had
11
an opportunity to be heard.
12
reasons for the decision of the BPH.
13
allegations and documentation establish that he received all
14
process that was due.
15
Petitioner could state a tenable due process claim.
16
Further, he received a statement of
Thus, Petitioner’s own
It, therefore, does not appear that
Accordingly, it will be recommended that with respect to
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Petitioner’s first and second due process claims concerning the
18
evidence supporting the BPH’s decisions, the Respondent’s motion
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to dismiss the petition be granted, and Petitioner’s due process
20
claims concerning the evidence be dismissed without leave to
21
amend.
22
IV.
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Respondent's motion to dismiss addresses only Petitioner's
Claim concerning Petitioner’s Plea Agreement
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due process claims concerning the "some evidence" standard.
25
Court proceeds to consider the adequacy of Petitioner's
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additional claims pursuant to the authority conferred by the
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Habeas Rules, which permit the Court to dismiss a petition for
28
writ of habeas corpus either on its own motion under Habeas Rule
9
The
1
4, pursuant to a respondent's motion to dismiss, or after an
2
answer to the petition has been filed.
3
to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d
4
1039, 1042-43 (9th Cir. 2001).
5
Advisory Committee Notes
In his third claim, Petitioner argues that the BPH’s use of
6
facts not found by a jury or admitted by Petitioner violated
7
Petitioner’s understanding of the plea agreement he made with
8
respect to the commitment offense.
9
pled guilty to second degree murder, but the plea agreement did
Petitioner alleges that he
10
not contain descriptions of Petitioner’s offense that were relied
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on by the BPH as reasons for finding Petitioner unsuitable.
12
descriptions to which Petitioner refers are the BPH’s
13
characterizations of the commitment offense as “calculated and
14
dispassionate,” and of Petitioner’s motive for the crime as
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“inexplicable.”
16
The
(Pet. 5.)
Petitioner also alleges that being denied parole after
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twenty years of doing all that was asked of him by the BPH and
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all he could do to rehabilitate himself is contrary to what
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Petitioner reasonably understood when entering into his plea
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agreement, and thus it is a denial of due process.
21
(Pet. 35.)
Petitioner alleges that his plea bargain stipulated that his
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offense would be treated solely as a second degree murder, which
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by definition is a crime that lacks premeditation and
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deliberation.
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guilty to second degree murder, an offense which permits a grant
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of parole, he cannot be punished as he would be punished for
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first degree murder.
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to avoid the possibility of a longer sentence; because he has
Petitioner appears to allege that because he pled
One reason why he chose to plead guilty was
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1
been found unsuitable for parole, Petitioner has not received
2
what he bargained for when he pled guilty.
3
Petitioner pled to first degree murder, he would have already
4
satisfied the custody requirement for such a conviction.
5
35.)
6
7
A.
(Pet. 32-33.)
Had
(Pet.
Background
The declaration of Petitioner executed on November 17, 1989,
8
in the trial court in connection with the change of his plea to
9
guilty reflects that Petitioner pled guilty to second degree
10
murder with personal use of a firearm.
11
that he understood that the maximum punishment he could receive
12
for each crime was as follows:
13
years in state prison to life in state prison; and for use of a
14
firearm, two years in state prison.
15
that he also understood that any state prison commitment would be
16
followed by a period of parole of three to four years.
17
declared that he freely and voluntarily pled guilty because he
18
was guilty, and/or because he had been advised of risking the
19
possibility of a longer sentence or conviction of more serious
20
charges, and/or because the District Attorney and the court had
21
agreed to a plea of second degree murder with an admission of
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personal use of a firearm.
23
Petitioner stated:
24
25
26
(Pet. 259.)
He declared
for second degree murder, fifteen
Id.
(Id. at 260.)
Petitioner declared
(Id.)
In the declaration,
Except as otherwise stated herein, no one has promised
or suggested to me that I will receive a lighter
sentence, probation, reward, immunity or anything else
to get me to plead guilty/nolo contendere (no contest)
as indicated.
27
(Pet. 260.)
28
explained everything in the declaration to him with sufficient
Petitioner also declared that his attorney had
11
He
1
time for Petitioner to consider it.
2
declared that he had explained the contents of the declaration to
3
Petitioner.
4
5
B.
(Id.)
His attorney likewise
(Id.)
Analysis of the Terms of Petitioner’s Plea Bargain
A criminal defendant has a due process right to enforce the
6
terms of his plea agreement.
7
plea agreement must be fulfilled if they are significant
8
inducements to enter into a plea.
9
U.S. 257, 262 (1971); Buckley v. Terhune, 441 F.3d 688, 694 (9th
Promises from the prosecution in a
Santobello v. New York, 404
10
Cir. 2006).
11
measured by contract law standards.
12
Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993).
13
agreement, a court must determine what the defendant reasonably
14
believed to be the terms of the plea agreement at the time of the
15
plea.
16
2002).
17
Plea agreements are contractual in nature and are
United States v. De la
In construing a plea
United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.
The construction of a state court plea agreement is a matter
18
of state law, and federal courts will defer to a state court’s
19
reasonable construction of a plea agreement.
20
Adamson, 483 U.S. 1, 6 n.3 (1987);
21
688, 695 (9th Cir. 2006).
22
agreement is a form of contract and is interpreted according to
23
general contract principles and according to the same rules as
24
other contracts.
25
People v. Shelton, 37 Cal.4th 759, 767 (2006) and People v.
26
Toscano, 124 Cal.App.4th 340, 344 (2004)).
27
28
Ricketts v.
Buckley v. Terhune, 441 F.3d
In California, a negotiated plea
Buckley v. Terhune, 441 F.3d 688, 695 (citing
In California, the plain meaning of an agreement’s language
must first be considered.
If the language is ambiguous, it must
12
1
be interpreted by ascertaining the objectively reasonable
2
expectations of the promisee at the time the contract was made.
3
Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006).
4
ambiguity remains after a court considers the objective
5
manifestations of the parties’ intent, the language of the
6
contract should be interpreted most strongly against the party
7
who caused the uncertainty to exist, or in favor of the
8
defendant.
9
If
Id. at 695-96.
Here, Petitioner fails to allege facts that would entitle
10
him to habeas relief.
11
sentenced to “17 years-to-life” for second degree murder with use
12
of a firearm.
13
agreement included any term or condition concerning parole, the
14
parole period, Petitioner’s eligibility for parole, or release on
15
parole.
16
His own petition states that he was
(Pet. 1.)
Petitioner does not show that his plea
Petitioner’s conclusional allegations are not supported by a
17
statement of specific facts and thus do not warrant habeas
18
relief.
19
Petitioner fails to show that state authorities’ finding that
20
Petitioner was not suitable for parole was inconsistent with, or
21
violated, Petitioner’s plea agreement.
See, James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).
22
Petitioner asserts that his continued confinement is
23
inconsistent with his expectation of any benefit from his plea
24
bargain.
25
all that was asked of him by the BPH for twenty years is contrary
26
to his expectations concerning his plea.
27
bargain, Petitioner avoided the certainty of a more severe
28
sentence for first degree murder.
He asserts that being denied parole after having done
13
However, by his
(Pet. 33.)
Further,
1
Petitioner has not alleged specific facts showing that an actual
2
grant of parole was the subject of a promise exchanged in the
3
bargain; he has alleged facts supporting only a generalized
4
expectation of the possibility of release on parole.
5
Petitioner has not shown that his plea agreement was
6
ambiguous in any respect.
7
life clearly denotes confinement to endure for a minimum of
8
seventeen years and potentially as long as the sentenced person
9
lives.
A sentence of seventeen (17) years to
This is consistent with California law, pursuant to which
10
it is established that an indeterminate life sentence is in legal
11
effect a sentence for the maximum term of life.
12
269 Cal.App.2d 209, 214 (1969).
13
People v. Dyer,
Generally, a convicted person serving an indeterminate life
14
term in state prison is not entitled to release on parole until
15
he is found suitable for such release by the Board of Parole
16
Hearings (previously, the Board of Prison Terms).
17
§ 3041(b); Cal. Code of Regs., tit. 15, § 2402(a).
18
California’s Determinate Sentencing Law, an inmate such as
19
Petitioner who is serving an indeterminate sentence for murder
20
may serve up to life in prison, but he does not become eligible
21
for parole consideration until the minimum term of confinement is
22
served.
23
actual confinement period of a life prisoner is determined by an
24
executive parole agency.
25
Cal. Pen. Code
Under
In re Dannenberg, 34 Cal.4th 1061, 1078 (2005).
The
Id. (citing Cal. Pen. Code § 3040).
Here, there is no basis for a conclusion that at the time
26
the plea was entered, objective manifestations of intent
27
reflected that Petitioner reasonably understood that he was
28
entitled to release on parole at any particular point in his
14
1
indeterminate sentence.
2
that the indeterminate sentence imposed was anything other than a
3
sentence for the maximum term of life, with a possibility of
4
release on parole after seventeen (17) years if Petitioner were
5
found suitable for such release.
6
The facts do not warrant a conclusion
Any rejection by state courts of Petitioner's claim was not
7
contrary to, or an unreasonable application of, clearly
8
established Supreme Court precedent, and it was not based on an
9
unreasonable determination of the facts.
See, 28 U.S.C.
10
§ 2254(d).
11
apply clearly established precedent of the United States Supreme
12
Court.
13
court to have determined that Petitioner had simply shown that he
14
bargained for a term of seventeen (17) years to life with only
15
the “possibility” of release on parole.
16
Adamson, 483 U.S. 1, 6 n.3 (1987).
17
relies on state regulations or statutes that permit discretionary
18
release after a shorter period of time than Petitioner has been
19
confined, Petitioner’s claim is based on the application of state
20
law and thus does not entitle Petitioner to relief.
21
Petitioner has not shown that a state court failed to
Further, it would have been reasonable for the state
See, Ricketts v.
To the extent Petitioner
The record of the pertinent proceedings involving
22
Petitioner’s change of plea before the Court does not contain any
23
evidence of a promise concerning parole release.
24
does not appear that Petitioner could allege a tenable due
25
process claim concerning his plea if leave to amend were granted.
26
Accordingly, it will be recommended that Petitioner’s due process
27
claim concerning his plea bargain be dismissed without leave to
28
amend.
15
It, therefore,
1
2
C.
Apprendi Claim
In his third claim, Petitioner argues that he suffered an
3
Apprendi2 violation because the BPH made findings of fact
4
concerning the circumstances and nature of the commitment offense
5
that were not either found by a jury beyond a reasonable doubt or
6
admitted by Petitioner in connection with his plea.
7
contends that when he was found unsuitable, he was exposed to
8
punishment exceeding the statutory maximum for first or second
9
degree murder.
10
Petitioner
(Pet. 33.)
Petitioner asserts that Blakely v. Washington, 542 U.S. 296
11
(2004) held that the statutory maximum punishment for second
12
degree murder is a minimum term of fifteen (15) years if based
13
solely on facts reflected in a jury’s verdict or admitted by the
14
defendant.
15
BPH’s findings concerning the nature of his commitment offense
16
when he entered his plea, the findings violate his due process
17
rights.
18
(2002), which held that a trial judge’s determination of the
19
presence or absence of aggravating or mitigating factors that
20
govern the choice of the death penalty was a violation of the
21
defendant’s Sixth and Fourteenth Amendment right to a trial by
22
jury in capital prosecutions.
23
He argues that because he did not expressly admit the
Petitioner also cites Ring v. Arizona, 536 U.S. 584
In Apprendi, the Court held that any fact other than a
24
prior conviction that is necessary to support a sentence
25
exceeding the maximum authorized by the facts established by a
26
plea of guilty or a jury verdict must be admitted by a defendant
27
28
2
The reference is to Apprendi v. New Jersey, 530 U.S. 466 (2000).
16
1
or proved to a jury beyond a reasonable doubt.
2
Jersey, 530 U.S. 466, 490; United States v. Booker, 543 U.S. 220,
3
244 (2005).
4
the Court held that the “statutory maximum for Apprendi purposes
5
is the maximum sentence a judge may impose solely on the basis of
6
the facts reflected in the jury verdict or admitted by the
7
defendant.”
8
9
Apprendi v. New
In Blakely v. Washington, 542 U.S. 296, 303 (2004),
Blakely, 542 U.S. at 303.
Cal. Pen. Code § 190(a) provides generally that first degree
murder is punishable by death or imprisonment for twenty-five
10
(25) years to life; second degree murder is punishable by
11
imprisonment for fifteen (15) years to life.
12
noted, in California, an indeterminate sentence of fifteen years
13
to life is in legal effect a sentence for the maximum term of
14
life, subject only to the power of the parole authority to set a
15
lesser term.
16
As previously
People v. Dyer, 269 Cal.App.2d 209, 214 (1969).
Based on the foregoing, the Court concludes that in denying
17
parole, the BPH did not increase Petitioner’s sentence beyond the
18
statutory maximum of life imprisonment for second degree murder.
19
The Court is mindful of the discretionary and predictive nature
20
of the evaluations made by the BPH in considering release of an
21
inmate on parole.
22
and Corr. Complex, 442 U.S. 1, 9-10 (1979).
23
aware of any Supreme Court authority applying the principles of
24
Apprendi to parole proceedings.
25
was not entitled to a jury trial or proof beyond a reasonable
26
doubt in his parole proceedings.
27
U.S. 112, 120 (2001) (no right to jury trial or proof beyond a
28
reasonable doubt in proceedings to revoke probation); United
See, Greenholtz v. Inmates of Nebraska Penal
The Court is not
The Court notes that Petitioner
17
United States v. Knights, 534
1
States v. Huerta-Pimentel, 445 F.3d 1220, 1225 (9th Cir. 2006) (a
2
judge’s finding by a preponderance of the evidence that a
3
defendant violated the conditions of supervised release does not
4
raise a concern regarding the Sixth Amendment); see, Swarthout v.
5
Cooke, 131 S.Ct. at 862.
6
relatively minimal processes of Greenholtz.
7
which concerns a right to jury trial and proof beyond a
8
reasonable doubt to a jury, does not appear to be applicable to
9
parole proceedings.
10
Instead, Petitioner was entitled to the
Thus, Apprendi,
The Court concludes that Petitioner did not allege facts
11
that would entitle him to relief on the basis of a denial of due
12
process of law from the absence of a jury trial or jury finding
13
concerning the circumstances of his offense.
14
of the apparent inapplicability of the Apprendi concepts to
15
parole proceedings, it does not appear that Petitioner could
16
allege a tenable Apprendi claim for relief.
17
Further, in light
Thus, it will be recommended that Petitioner’s due process
18
claim relating to the Apprendi decision be dismissed without
19
leave to amend.
20
V.
21
In his fourth claim, Petitioner alleges that the state
Decisions of the State Courts
22
courts’ rulings affirming the BPH’s decision were unreasonable
23
determinations of the facts in light of the evidence.
24
In this claim, Petitioner appears to challenge the state
25
court’s decisions upholding the BPH’s determinations of fact.
26
However, as the preceding discussion of the Swarthout case
27
reflects, the application of the “some evidence” rule to the
28
facts relevant to parole eligibility is not within the scope of
18
1
this Court’s review in a proceeding pursuant to 28 U.S.C. § 2254.
2
Accordingly, the Court concludes that with respect to his fourth
3
claim concerning unreasonable determinations of fact, Petitioner
4
has failed to state facts entitling him to relief.
5
claim is not cognizable in a proceeding pursuant to 28 U.S.C.
6
§ 2254, it will be recommended that the claim be dismissed
7
without leave to amend.
8
Because the
In sum, the Court concludes that with respect to all the
9
claims set forth in the petition, Petitioner has failed to state
10
facts that entitle him to relief or point to a real possibility
11
of constitutional error.
12
Respondent’s motion to dismiss the petition without leave to
13
amend be granted and the petition be dismissed without leave to
14
amend.
Thus, it will be recommended that
15
VI.
16
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
17
appealability, an appeal may not be taken to the Court of Appeals
18
from the final order in a habeas proceeding in which the
19
detention complained of arises out of process issued by a state
20
court.
21
U.S. 322, 336 (2003).
22
only if the applicant makes a substantial showing of the denial
23
of a constitutional right.
24
petitioner must show that reasonable jurists could debate whether
25
the petition should have been resolved in a different manner or
26
that the issues presented were adequate to deserve encouragement
27
to proceed further.
28
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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
19
A
1
certificate should issue if the Petitioner shows that jurists of
2
reason would find it debatable whether the petition states a
3
valid claim of the denial of a constitutional right and that
4
jurists of reason would find it debatable whether the district
5
court was correct in any procedural ruling.
6
529 U.S. 473, 483-84 (2000).
7
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
8
the claims in the habeas petition, generally assesses their
9
merits, and determines whether the resolution was debatable among
10
jurists of reason or wrong.
11
applicant to show more than an absence of frivolity or the
12
existence of mere good faith; however, it is not necessary for an
13
applicant to show that the appeal will succeed.
14
Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
15
A district court must issue or deny a certificate of
16
appealability when it enters a final order adverse to the
17
applicant.
18
It does not appear that reasonable jurists could debate whether
19
the petition should have been resolved in a different manner.
20
Petitioner has not made a substantial showing of the denial of a
21
constitutional right.
22
23
Rule 11(a) of the Rules Governing Section 2254 Cases.
Therefore, it will be recommended that the Court decline to
issue a certificate of appealability.
24
VII.
25
Accordingly, it is RECOMMENDED that:
26
1) Respondent’s motion to dismiss without leave to amend
Recommendation
27
Petitioner’s first and second due process claims concerning some
28
evidence be GRANTED; and
20
1
2
2) Petitioner’s third and fourth claims be DISMISSED without
leave to amend; and
3
4
3) The petition for writ of habeas corpus be DISMISSED
without leave to amend; and
5
6
4)
appealability; and
7
8
The Court DECLINE to issue a certificate of
5) The Clerk be DIRECTED to close the case because an order
of dismissal would terminate the action in its entirety.
9
These findings and recommendations are submitted to the
10
United States District Court Judge assigned to the case, pursuant
11
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
12
the Local Rules of Practice for the United States District Court,
13
Eastern District of California.
14
being served with a copy, any party may file written objections
15
with the Court and serve a copy on all parties.
16
should be captioned “Objections to Magistrate Judge’s Findings
17
and Recommendations.”
18
and filed within fourteen (14) days (plus three (3) days if
19
served by mail) after service of the objections.
20
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
21
636 (b)(1)(C).
22
objections within the specified time may waive the right to
23
appeal the District Court’s order.
24
1153 (9th Cir. 1991).
Within thirty (30) days after
Such a document
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
25
26
IT IS SO ORDERED.
27
Dated:
ie14hj
May 31, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
28
21
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