Sifuentes v. Hartley
Filing
13
FINDINGS and RECOMMENDATIONS to Grant Respondent's 12 MOTION to DISMISS the Petition 1 , to Dismiss the Petition Without Leave to Amend For Failure to State a Cognizable Claim, and to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 5/27/2011, referred to Judge Wanger. Objections Deadline: Thirty (30) Days. (Marrujo, C)
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
EASTERN DISTRICT OF CALIFORNIA
7
8
OSCAR SIFUENTES,
9
Petitioner,
10
v.
11
J. D. HARTLEY,
12
Respondent.
13
14
)
)
)
)
)
)
)
)
)
)
)
)
1:10-cv—02233-OWW-SKO-HC
FINDINGS AND RECOMMENDATIONS
TO GRANT RESPONDENT’S MOTION TO
DISMISS THE PETITION (DOCS. 12,
1), TO DISMISS THE PETITION
WITHOUT LEAVE TO AMEND FOR
FAILURE TO STATE A COGNIZABLE
CLAIM, AND TO DECLINE TO ISSUE
A CERTIFICATE OF APPEALABILITY
OBJECTIONS DEADLINE:
THIRTY (30) DAYS
15
Petitioner is a state prisoner proceeding pro se and in
16
forma pauperis with a petition for writ of habeas corpus pursuant
17
to 28 U.S.C. § 2254.
The matter has been referred to the
18
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
19
Rules 302 and 304.
Pending before the Court is Respondent’s
20
motion to dismiss the petition, which was filed and served by
21
mail on Petitioner on January 28, 2011.
(Doc. 12, 4.)
No
22
opposition or notice of non-opposition to the motion was filed.
23
I.
Consideration of the Motion to Dismiss
24
Because the petition was filed after April 24, 1996, the
25
effective date of the Antiterrorism and Effective Death Penalty
26
Act of 1996 (AEDPA), the AEDPA applies to the petition.
Lindh v.
27
Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d
28
1
1
1484, 1499 (9th Cir. 1997).
2
A district court may entertain a petition for a writ of
3
habeas corpus by a person in custody pursuant to the judgment of
4
a state court only on the ground that the custody is in violation
5
of the Constitution, laws, or treaties of the United States.
6
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
7
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
8
16 (2010) (per curiam).
9
28
Rule 4 of the Rules Governing Section 2254 Cases (Habeas
10
Rules) allows a district court to dismiss a petition if it
11
“plainly appears from the face of the petition and any exhibits
12
annexed to it that the petitioner is not entitled to relief in
13
the district court....”
14
The Ninth Circuit has allowed respondents to file motions to
15
dismiss pursuant to Rule 4 instead of answers if the motion to
16
dismiss attacks the pleadings by claiming that the petitioner has
17
failed to exhaust state remedies or has violated the state’s
18
procedural rules.
19
420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss
20
a petition for failure to exhaust state remedies); White v.
21
Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to
22
review a motion to dismiss for state procedural default); Hillery
23
v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).
24
Thus, a respondent may file a motion to dismiss after the Court
25
orders the respondent to respond, and the Court should use Rule 4
26
standards to review a motion to dismiss filed before a formal
27
answer.
28
See, e.g., O’Bremski v. Maass, 915 F.2d 418,
See, Hillery, 533 F. Supp. at 1194 & n.12.
In this case, before an answer was filed, the United States
2
1
Supreme Court decided Swarthout v. Cooke, 562 U.S. –, 131 S.Ct.
2
859 (2011), which appears to apply to the petition in the case
3
before the Court.
4
filed a motion to dismiss the petition because the petition does
5
not state a claim cognizable in a proceeding pursuant to 28
6
U.S.C. § 2254.
7
Within a few days of the decision, Respondent
The material facts pertinent to the motion are to be found
8
in copies of the official records of state parole and judicial
9
proceedings which have been provided by the parties, and as to
10
which there is no factual dispute.
11
to dismiss is similar in procedural standing to motions to
12
dismiss on procedural grounds, the Court will review Respondent’s
13
motion to dismiss pursuant to its authority under Rule 4.
Because Respondent's motion
14
II.
15
In the petition filed on December 2, 2010, Petitioner
Background
16
alleges that he was an inmate of the Avenal State Prison at
17
Avenal, California, serving a sentence of twenty-seven (27) years
18
to life imposed by the Fresno County Superior Court upon
19
Petitioner’s conviction in May 1984 of first degree murder with
20
the use of a firearm.
21
decision of California’s Board of Parole Hearings (BPH) rendered
22
after a hearing held on October 7, 2009, finding Petitioner
23
unsuitable for parole.
24
the decisions of the state courts upholding the BPH’s decision on
25
the ground that the courts misapplied California’s “some
26
evidence” standard.
27
28
(Pet. 1.)
Petitioner challenges the
(Pet. 14.)
Petitioner also challenges
(Pet. 4.)
Petitioner raises the following claims in the petition
concerning a denial of due process of law (pet. 14-30): 1) the
3
1
decisions of the state courts were contrary to, or involved an
2
unreasonable application of, clearly established federal law; 2)
3
the state court decisions were based on an unreasonable
4
determination of facts in light of the evidence presented (pet.
5
4); 3) the BPH failed to apply the correct standard of review or
6
misapplied the standard of review of parole suitability factors
7
set by California law (pet. 5); 4) the BPH failed to articulate a
8
rational nexus between the evidence and the finding that
9
Petitioner then presented a danger to the public safety because
10
in light of Petitioner’s subsequent behavior and mental status,
11
the circumstances of the offense were no longer a reliable
12
indicator of dangerousness (pet. 5); 5) [also numbered as ground
13
three on pet. 6] Petitioner’s commitment offense was no more
14
cruel or heinous than any other first degree murder and thus
15
reliance on it to deny parole might deny due process of law (pet.
16
6); and 6) [also numbered as ground four on pet. 6] the factors
17
cited by the BPH as supporting denial of parole do not
18
demonstrate current danger, and thus reliance thereon was an
19
abuse of discretion in view of Petitioner’s history, his showing
20
of remorse and taking full responsibility for the offense, his
21
maturity, and a psychological evaluation concluding that he
22
presented a low risk of danger to the community (pet. 6).
23
The transcript of the parole hearing held on October 7,
24
2009, demonstrates that Petitioner received documents before the
25
hearing and was given an opportunity to clarify or correct the
26
record (pet. 38-39, 41), attended the hearing (pet. 33, 36),
27
voluntarily chose not to discuss any matter with the BPH on the
28
day of the hearing, and declined to make a closing statement.
4
1
(Pet. 41-42, 50, 60.)
2
advocated on Petitioner’s behalf, which included giving a closing
3
statement in favor of parole.
4
Petitioner’s attorney was given opportunities for input with
5
respect to factors of parole suitability.
6
The BPH considered the information reflected in the transcripts,
7
Petitioner’s C-File, and the BPH’s files.
An attorney appeared at the hearing and
(Pet. 36, 41, 45, 47, 55-60.)
(Pet. 45, 47.)
(Pet. 43-50.)
8
Petitioner was present when the BPH gave its reasons for
9
denying parole for three years, which included the commitment
10
offense, involvement of multiple victims and drug use,
11
Petitioner’s criminal history, unstable social history, failure
12
on previous grants of probation and after incarceration in the
13
county jail, drug and alcohol use, the prosecutor’s opposition to
14
release, and the uncertainty of Petitioner’s insight, attitude
15
toward the crime, and understanding of the nature and magnitude
16
of the offense.
17
III.
18
Because the petition was filed after April 24, 1996, the
(Pet. 61-71.)
Failure to Allege a Claim Cognizable on Habeas Corpus
19
effective date of the Antiterrorism and Effective Death Penalty
20
Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
21
v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
22
(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
23
A district court may entertain a petition for a writ of
24
habeas corpus by a person in custody pursuant to the judgment of
25
a state court only on the ground that the custody is in violation
26
of the Constitution, laws, or treaties of the United States. 28
27
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
28
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
5
Lindh
1
2
16 (2010) (per curiam).
The Supreme Court has characterized as reasonable the
3
decision of the Court of Appeals for the Ninth Circuit that
4
California law creates a liberty interest in parole protected by
5
the Fourteenth Amendment Due Process Clause, which in turn
6
requires fair procedures with respect to the liberty interest.
7
Swarthout v. Cooke, 562 U.S. –, – S.Ct. -, 2011 WL 197627, *2
8
(No. 10-133, Jan. 24, 2011).
9
However, the procedures required for a parole determination
10
are the minimal requirements set forth in Greenholtz v. Inmates
11
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1
12
Swarthout v. Cooke, 2011 WL 197627, *2.
13
rejected inmates’ claims that they were denied a liberty interest
14
because there was an absence of “some evidence” to support the
15
decision to deny parole.
16
17
18
19
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
20
1
21
22
23
24
25
26
27
28
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.
6
1
2
3
4
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.)
5
Swarthout, 2011 WL 197627, *2.
The Court concluded that the
6
petitioners had received the process that was due:
7
8
9
10
11
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.
12
Swarthout, 2011 WL 197627, *3.
13
noted that California’s “some evidence” rule is not a substantive
14
federal requirement, and correct application of California’s
15
“some evidence” standard is not required by the federal Due
16
Process Clause.
17
The Court in Swarthout expressly
Id. at *3.
In his third through sixth claims, Petitioner is alleging
18
that California’s “some evidence” rule was not correctly applied
19
and that the record lacks some evidence to support the BPH’s
20
conclusion that Petitioner presented a danger to the public and
21
to society.
22
to a real possibility of constitutional error or that otherwise
23
would entitle Petitioner to habeas relief because California’s
24
“some evidence” requirement is not a substantive federal
25
requirement.
26
record for “some evidence” to support the denial of parole is not
27
within the scope of this Court’s habeas review under 28 U.S.C. §
28
2254.
However, Petitioner does not state facts that point
Swarthout, 2011 WL 197627, *3.
7
Review of the
1
Petitioner’s allegations and conclusions also rest in
2
significant part on state statutory, regulatory, and case law.
3
To the extent that Petitioner’s claims rest on state law,
4
they are not cognizable on federal habeas corpus.
5
relief is not available to retry a state issue that does not rise
6
to the level of a federal constitutional violation.
7
Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v.
8
McGuire, 502 U.S. 62, 67-68 (1991).
9
application of state law are not cognizable in federal habeas
10
11
corpus.
Federal habeas
Wilson v.
Alleged errors in the
Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).
Petitioner’s first and second claims concerning the
12
decisions of the state courts likewise fail to state grounds for
13
habeas corpus relief.
14
established federal law in its decision, a state court decision
15
upholding the BPH’s determinations logically would not violate
16
clearly established federal law.
17
habeas review does not extend to the adequacy of the evidentiary
18
basis for the BPH’s findings, a state court’s upholding the
19
findings of the BPH would not constitute an unreasonable
20
determination of the facts.
21
Because the BPH violated no clearly
Likewise, because federal
The Court notes that Petitioner does not allege that the
22
procedures used for determination of his suitability for parole
23
were deficient because of the absence of either an opportunity to
24
be heard or a statement of reasons for the ultimate decision
25
reached.
26
parole hearing before the BPH, voluntarily declined to make any
27
statements to the BPH, and was represented by an attorney who was
28
present at the hearing and advocated on Petitioner’s behalf.
The Court further notes that Petitioner attended the
8
1
Petitioner received a statement of the Board’s reasons for
2
denying parole.
3
It thus appears from the face of the petition and supporting
4
documentation that Petitioner was not denied parole without the
5
requisite due process of law.
6
A petition for habeas corpus should not be dismissed without
7
leave to amend unless it appears that no tenable claim for relief
8
can be pleaded were such leave granted.
9
F.2d 13, 14 (9th Cir. 1971).
10
Jarvis v. Nelson, 440
As Petitioner received all process that was due, Petitioner
11
is unable to state a tenable due process claim.
12
will be recommended that the petition be dismissed without leave
13
to amend for the failure to allege facts that point to a real
14
possibility of constitutional error or that would otherwise
15
entitle Petitioner to habeas relief.
Accordingly, it
16
IV.
17
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
18
appealability, an appeal may not be taken to the Court of Appeals
19
from the final order in a habeas proceeding in which the
20
detention complained of arises out of process issued by a state
21
court.
22
U.S. 322, 336 (2003).
23
only if the applicant makes a substantial showing of the denial
24
of a constitutional right.
25
petitioner must show that reasonable jurists could debate whether
26
the petition should have been resolved in a different manner or
27
that the issues presented were adequate to deserve encouragement
28
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
9
1
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
2
certificate should issue if the Petitioner shows that jurists of
3
reason would find it debatable whether the petition states a
4
valid claim of the denial of a constitutional right and that
5
jurists of reason would find it debatable whether the district
6
court was correct in any procedural ruling.
7
529 U.S. 473, 483-84 (2000).
8
9
A
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
the claims in the habeas petition, generally assesses their
10
merits, and determines whether the resolution was debatable among
11
jurists of reason or wrong.
12
applicant to show more than an absence of frivolity or the
13
existence of mere good faith; however, it is not necessary for an
14
applicant to show that the appeal will succeed.
15
Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
16
A district court must issue or deny a certificate of
17
appealability when it enters a final order adverse to the
18
applicant.
19
Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
20
debate whether the petition should have been resolved in a
21
different manner.
22
of the denial of a constitutional right.
23
recommended that the Court decline to issue a certificate of
24
appealability.
Petitioner has not made a substantial showing
Accordingly, it will be
25
V.
26
In summary, the Court concludes that Respondent correctly
27
28
Recommendation
contends that no cognizable claim is stated in the petition.
Accordingly, it is RECOMMENDED that:
10
1
2
1)
Respondent’s motion to dismiss the petition be GRANTED;
2)
The petition for writ of habeas corpus be DISMISSED
and
3
4
without leave to amend because Petitioner has failed to state a
5
claim cognizable on habeas corpus; and
6
7
3)
appealability; and
8
9
The Court DECLINE to issue a certificate of
4)
The Clerk be DIRECTED to close the action because this
order terminates the proceeding in its entirety.
10
These findings and recommendations are submitted to the
11
United States District Court Judge assigned to the case, pursuant
12
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
13
the Local Rules of Practice for the United States District Court,
14
Eastern District of California.
15
being served with a copy, any party may file written objections
16
with the Court and serve a copy on all parties.
17
should be captioned “Objections to Magistrate Judge’s Findings
18
and Recommendations.”
19
and filed within fourteen (14) days (plus three (3) days if
20
served by mail) after service of the objections.
21
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
22
636 (b)(1)(C).
23
objections within the specified time may waive the right to
24
appeal the District Court’s order.
25
1153 (9th Cir. 1991).
26
IT IS SO ORDERED.
27
Dated:
ie14hj
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
May 27, 2011
Martinez v. Ylst, 951 F.2d
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
28
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?