Otte v. Hartley
Filing
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FINDINGS and RECOMMENDATIONS re: Respondent's Motion to Dismiss 10 the Petition 1 ; FINDINGS and RECOMMENDATIONS to Dismiss the Petition without Leave to Amend 1 , Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 6/13/11. Referred to Judge O'Neill. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEVIN OTTE,
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Petitioner,
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v.
J. HARTLEY, Warden,
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Respondent.
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1:10-cv—01998-LJO-SKO-HC
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT’S MOTION TO DISMISS
THE PETITION
(DOCS. 10, 1)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND (DOC. 1),
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DIRECT
THE CLERK TO CLOSE THE CASE
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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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The matter has been referred to the Magistrate Judge pursuant to
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28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
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before the Court is Respondent’s motion to dismiss the petition,
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which was filed on March 8, 2011.
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to the motion on March 30, 2011.
Pending
Petitioner filed an opposition
No reply was filed.
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I.
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Because the petition was filed after April 24, 1996, the
Proceeding by a 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.
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Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d
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Lindh v.
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1484, 1499 (9th Cir. 1997).
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A district court may entertain a petition for a writ of
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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 in the
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District Courts (Habeas Rules) allows a district court to dismiss
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a petition if it “plainly appears from the face of the petition
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and any exhibits annexed to it that the petitioner is not
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entitled to relief in 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
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standards to review a motion to dismiss filed before a formal
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answer.
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///
See, e.g., O’Bremski v. Maass, 915 F.2d 418,
See, Hillery, 533 F. Supp. at 1194 & n.12.
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Here, upon being directed to respond to the petition by way
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of answer or motion, Respondent filed the motion to dismiss.
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material facts pertinent to the motion are found in the pleadings
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and in copies of the official records of state parole and
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judicial proceedings which have been provided by the parties, and
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as to which there is no factual dispute.
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The
Because Respondent's motion to dismiss is similar in
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procedural standing to motions to dismiss on procedural grounds,
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the Court will review Respondent’s motion to dismiss pursuant to
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its authority under Rule 4.
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II.
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Petitioner alleged that he was an inmate of the Avenal State
Background
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Prison at Avenal, California, serving a sentence of twenty-five
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(25) years to life imposed by the Los Angeles County Superior
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Court upon Petitioner’s conviction in December 1990 of first
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degree murder.
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California’s Board of Parole Hearings (BPH) made after a hearing
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held on March 10, 2008, finding Petitioner unsuitable for parole
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because he presented a risk to the public and society.
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6-7, 11.)
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(Pet. 1.)
Petitioner challenges the decision of
(Id. at
Petitioner raises the following claims: 1) the BPH’s
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decision violated Petitioner’s right to due process of law under
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the Fourteenth Amendment because there was no reliable evidence
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supporting the finding that Petitioner posed an unreasonable risk
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of danger to society if released from prison; 2) the BPH’s
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decision violated Petitioner’s right to due process of law
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because it did not reflect due consideration of the factors of
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parole suitability specified in state law, and it was arbitrary;
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and 3) decisions of the state courts upholding the BPH’s decision
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were objectively unreasonable and thus deprived Petitioner of due
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process of law.
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did not consider favorable suitability factors, and the evidence
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concerning Petitioner’s suitability actually supported a grant of
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parole.
(Pet. at 6-7.)
Petitioner argues that the BPH
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The petition and the transcript of the parole proceedings
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reflect that Petitioner had an opportunity to submit documents
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and to testify and make a final statement at the parole hearing,
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and Petitioner received a statement of reasons for the BPH’s
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finding of unsuitability.
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15-87, 95-101, 111-21.)
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offense, Petitioner’s history, and a psychological evaluation.
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(Id. at 111-21.)
(Pet. 14; mot., doc. 10-1, 2, 5, 13,
The reasons included the commitment
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The Los Angeles County Superior Court denied Petitioner’s
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petition for writ of habeas corpus on June 12, 2009, reasoning
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that there was some evidence to support the BPH’s findings that
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the commitment offense was cruel and carried out in a calculated
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and dispassionate manner, Petitioner had not fully expressed
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remorse regarding the victim, and Petitioner had a significant
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history of escalating criminality.
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the BPH’s decision.
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Thus, some evidence supported
(Pet. 38, 42, 46-48.)
The California Court of Appeal, Second Appellate District,
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denied Petitioner’s petition for writ of mandate or habeas corpus
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on July 22, 2010, and the California Supreme Court denied
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Petitioner’s petition for review on September 29, 2010.
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50-52.)
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///
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(Pet.
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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
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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.
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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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are the minimal requirements set forth in Greenholtz v. Inmates
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of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1
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Swarthout v. Cooke, 131 S.Ct. 859, 862.
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rejected inmates’ claims that they were denied a liberty interest
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because there was an absence of “some evidence” to support the
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decision to deny parole.
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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
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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.
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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.)
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Swarthout, 131 S.Ct. 859, 862.
The Court concluded that the
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petitioners had received the process that was due as follows:
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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....
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.
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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.
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The Court in Swarthout expressly
Id. at 862-63.
Petitioner argues that the “some evidence” rule was not
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correctly applied in his case.
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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.
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Petitioner asks this Court to
Review of
Petitioner cites state law concerning the parole suitability
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determination.
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rest on state law, they are not cognizable on federal habeas
To the extent that Petitioner’s claim or claims
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corpus.
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issue that does not rise to the level of a federal constitutional
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violation.
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(2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
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errors in the application of state law are not cognizable in
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federal habeas corpus.
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Cir. 2002).
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Federal habeas relief is not available to retry a state
Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16
Alleged
Souch v. Schiavo, 289 F.3d 616, 623 (9th
Petitioner argues that the BPH did not duly consider the
factors of parole suitability specified in state law.
However,
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the standard of procedural due process applicable to parole
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hearings as articulated in Greenholtz does not require any
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particular type or level of consideration of parole suitability
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factors.
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decision was arbitrary, the record of the parole hearing and
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decision reflects that the BPH considered the evidence of various
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factors of parole suitability and reached a decision based on
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reasoning grounded in those factors.
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support Petitioner’s generalized allegation that the BPH
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proceeded arbitrarily.
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Further, although Petitioner argues that the BPH’s
The record thus does not
The Court concludes that because Petitioner failed to state
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due process claims that are cognizable in this proceeding, the
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due process claims must be dismissed.
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A petition for habeas corpus should not be dismissed without
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leave to amend unless it appears that no tenable claim for relief
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can be pleaded were such leave granted.
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F.2d 13, 14 (9th Cir. 1971).
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Jarvis v. Nelson, 440
Here, Petitioner has not alleged that he lacked an
opportunity to be heard or a statement of reasons.
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However, the
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allegations in the petition reveal that Petitioner attended the
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parole suitability hearing, made statements to the BPH, and
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received a statement of reasons for the decision of the BPH.
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Thus, Petitioner’s own allegations establish that Petitioner had
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an opportunity to be heard and received a statement of reasons
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for the decision in question.
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Petitioner could state a tenable due process claim.
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It therefore does not appear that
Accordingly, it will be recommended that Petitioner’s due
process claims concerning the BPH’s decision be dismissed without
leave to amend.
Because Petitioner has not established a violation by the
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parole authorities of his rights under the Fourteenth Amendment,
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the decisions of the state courts upholding the BPH’s decision
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could not have resulted in either 1) a decision that was contrary
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to, or involved an unreasonable application of, clearly
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established federal law, as determined by the Supreme Court of
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the United States; or 2) a decision that was based on an
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unreasonable determination of the facts in light of the evidence
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presented in the state court proceedings.
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failed to state facts concerning the state court decisions that
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would entitle him to relief.
Thus, Petitioner has
See, 28 U.S.C. § 2254(d).
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Therefore, Petitioner’s due process claim with respect to
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the state court decisions should likewise be dismissed without
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leave to amend.
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IV.
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Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
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appealability, an appeal may not be taken to the Court of Appeals
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from the final order in a habeas proceeding in which the
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detention complained of arises out of process issued by a state
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court.
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U.S. 322, 336 (2003).
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only if the applicant makes a substantial showing of the denial
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of a constitutional right.
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petitioner must show that reasonable jurists could debate whether
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the petition should have been resolved in a different manner or
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that the issues presented were adequate to deserve encouragement
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to proceed further.
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
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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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certificate should issue if the Petitioner shows that jurists of
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reason would find it debatable whether the petition states a
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valid claim of the denial of a constitutional right and that
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jurists of reason would find it debatable whether the district
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court was correct in any procedural ruling.
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529 U.S. 473, 483-84 (2000).
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Slack v. McDaniel,
In determining this issue, a court conducts an overview of
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the claims in the habeas petition, generally assesses their
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merits, and determines whether the resolution was debatable among
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jurists of reason or wrong.
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applicant to show more than an absence of frivolity or the
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existence of mere good faith; however, it is not necessary for an
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applicant to show that the appeal will succeed.
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Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
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A district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the
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applicant.
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Rule 11(a) of the Rules Governing Section 2254 Cases.
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Here, it does not appear that reasonable jurists could
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debate whether the petition should have been resolved in a
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different manner.
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of the denial of a constitutional right.
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Petitioner has not made a substantial showing
Therefore, it will be recommended that the Court decline to
issue a certificate of appealability.
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V.
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Accordingly, it is RECOMMENDED that:
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1)
Respondent’s motion to dismiss the petition be GRANTED;
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2)
The petition be DISMISSED without leave to amend; and
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3)
The Court DECLINE to issue a certificate of
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Recommendation
and
appealability; and
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The Clerk be DIRECTED to close the case because an order
of dismissal would terminate the action in its entirety.
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These findings and recommendations are submitted to the
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United States District Court Judge assigned to the case, pursuant
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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
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the Local Rules of Practice for the United States District Court,
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Eastern District of California.
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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.
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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).
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
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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).
Martinez v. Ylst, 951 F.2d
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IT IS SO ORDERED.
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Dated:
ie14hj
June 13, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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