Martinez v. Hartley

Filing 14

FINDINGS and RECOMMENDATIONS re: Respondent's 12 MOTION to DISMISS the Petition; FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition Without Leave to Amend, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 6/13/2011, referred to Judge Ishii. Objections Deadline: Thirty (30) Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JESSE MARTINEZ,

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Petitioner,

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v.
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WARDEN J. HARTLEY,
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Respondent.
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1:10-cv—02305-AWI-SKO-HC
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT’S MOTION TO DISMISS
THE PETITION (DOCS. 12, 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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OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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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.

Pending

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before the Court is the Respondent’s motion to dismiss the
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petition, which was filed on February 15, 2011.

Petitioner filed

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an opposition to the motion on March 4, 2011.

No reply was

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filed.
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I.

Background

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Petitioner alleged that he was an inmate of the Avenal State
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Prison at Avenal, California, serving a sentence of seventeen
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(17) years to life imposed by the Los Angeles County Superior
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Court upon Petitioner’s conviction in 1987 of second degree

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murder with use of a gun.

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(Pet. 1.)

Petitioner challenges the constitutionality of the

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governor’s rescission on March 17, 2009, of the previous decision

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of the California Board of Parole Hearings (BPH) granting parole

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to Petitioner on October 29, 2008.

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argues that because there was no evidence in the record to

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support the governor’s conclusion that Petitioner was a current

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danger if released, Petitioner suffered a violation of his rights

(Pet. 18-19.)

Petitioner

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to due process of law pursuant to the Fourteenth Amendment as

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well as the California Constitution.

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relies on California statutes, regulations, and case law

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concerning the determination of suitability for parole and

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application of the “some evidence” rule at parole hearings.

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at 22-44.)

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rehabilitation and other suitability factors supported a grant of

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parole, and that continued reliance on unchanging factors to deny

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parole deprived him of due process of law.

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challenges the decisions of the California appellate courts

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denying Petitioner habeas relief.

(Pet. 6.)

Petitioner also

(Id.

Petitioner argues that the evidence of his

Petitioner also

(Id. at 7, 39-44.)

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It is clear from the allegations in the petition that

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Petitioner attended the hearing before the BPH (pet. 18:16-18),

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had an opportunity to be heard (id. at 18:17-20; 19:1-5), and

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received a statement of reasons for the decisions of both the BPH

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and the governor (id. at 18:21-27; 20:10-27; 21:1-7).

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II.

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Because the petition was filed after April 24, 1996, the

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Failure to State a Cognizable Due Process Claim

effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.

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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008

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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

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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. 28

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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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Lindh

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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.

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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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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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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
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.

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petitioners had received the process that was due as follows:

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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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Petitioner asks this Court to engage in the very type of
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analysis foreclosed by Swarthout.

Petitioner seeks to have this

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Court review the application of the “some evidence” standard and
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the sufficiency of the evidence presented at the parole hearing.
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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 parole authorities’

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denial of parole is not within the scope of this Court’s habeas

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review under 28 U.S.C. § 2254.

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Review of

Petitioner cites state law concerning the appropriate
application of the “some evidence” requirement.

To the extent

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that Petitioner’s claim or claims rest on state law, they are not

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cognizable on federal habeas corpus.

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not available to retry a state issue that does not rise to the

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level of a federal constitutional violation.

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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.

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Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).

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Federal habeas relief is

Wilson v. Corcoran,

Alleged errors in the application of
Souch v.

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 governor’s

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decision could not have resulted in either 1) a decision that was

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contrary 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 in this proceeding.
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Thus, Petitioner has

See, 28 U.S.C.

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§ 2254(d).

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respect to the state court decisions should likewise be

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dismissed.

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Therefore, Petitioner’s due process claim with

In summary, the Court concludes that Petitioner has failed

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to state a due process claim cognizable in a proceeding pursuant

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to 28 U.S.C. § 2254.

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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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Jarvis v. Nelson, 440

F.2d 13, 14 (9th Cir. 1971).
Here, Petitioner attended the parole suitability hearing,

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made statements to the BPH, and received a statement of reasons

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for the decisions of the BPH and the governor.

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Petitioner’s own allegations establish that he had an opportunity

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to be heard and a statement of reasons for the decisions in

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question.

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state a tenable due process claim.

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Thus,

It therefore does not appear that Petitioner could

Accordingly, it will be recommended that the motion to

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dismiss the petition be granted, and the petition be dismissed

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without leave to amend.

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III.

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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

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue

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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.

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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

§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336
A

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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.

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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recommended that the Court decline to issue a certificate of

Petitioner has not made a substantial showing

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Therefore, it will be

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appealability.

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IV.

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Accordingly, it is RECOMMENDED that:

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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 appeal; and

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The Clerk be DIRECTED to close the case because an order

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Recommendations

and

of dismissal would terminate the case 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).

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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).

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IT IS SO ORDERED.

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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

June 13, 2011

Martinez v. Ylst, 951 F.2d

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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