Jones v. Hartley

Filing 6

ORDER DISMISSING 1 Petition WITH LEAVE TO FILE A FIRST AMENDED PETITION; ORDER DIRECTING the Clerk to Send Petitioner a Blank Petition for Writ of Habeas Corpus; Deadline: Thirty (30) Days after Service of this Order signed by Magistrate Judge Sheila K. Oberto on 5/11/2011. First Amended Petition due by 6/14/2011. (Attachments: # 1 2254 Petition)(Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RAY ANTHONY JONES, 11 Petitioner, 12 13 14 v. J. D. HARTLEY, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00666-AWI-SKO-HC ORDER DISMISSING THE PETITION WITH LEAVE TO FILE A FIRST AMENDED PETITION (DOC. 1) DEADLINE: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER ORDER DIRECTING THE CLERK TO SEND PETITIONER A BLANK PETITION FOR WRIT OF HABEAS CORPUS 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The 19 matter has been referred to the Magistrate Judge pursuant to 28 20 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before 21 the Court is the petition, which was filed on April 27, 2011. 22 I. Screening the Petition 23 Rule 4 of the Rules Governing § 2254 Cases in the United 24 States District Courts (Habeas Rules) requires the Court to make 25 a preliminary review of each petition for writ of habeas corpus. 26 The Court must summarily dismiss a petition "[i]f it plainly 27 appears from the petition and any attached exhibits that the 28 1 1 petitioner is not entitled to relief in the district court....” 2 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 3 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 4 1990). 5 grounds of relief available to the Petitioner; 2) state the facts 6 supporting each ground; and 3) state the relief requested. 7 Notice pleading is not sufficient; rather, the petition must 8 state facts that point to a real possibility of constitutional 9 error. Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; 10 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 11 Allison, 431 U.S. 63, 75 n. 7 (1977)). 12 that are vague, conclusory, or palpably incredible are subject to 13 summary dismissal. 14 Cir. 1990). 15 Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 16 corpus either on its own motion under Habeas Rule 4, pursuant to 17 the respondent's motion to dismiss, or after an answer to the 18 petition has been filed. 19 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 20 (9th Cir. 2001). 21 Advisory Committee Notes to Habeas Rule Here, Petitioner alleges that he is an inmate of the Avenal 22 State Prison serving a sentence of seven (7) years to life for 23 first degree murder imposed by the Merced County Superior Court 24 in 1976. 25 California’s Board of Parole Hearings (BPH) made on or about 26 March 3, 2009, after a hearing, to deny Petitioner parole for 27 three years because he was unsuitable. 28 alleges that the denial of parole violated his right to due (Pet. 1.) Petitioner challenges the decision of 2 (Pet. 4.) Petitioner 1 process of law protected by the Fourteenth Amendment because 1) 2 the decision rested on unchanging circumstances and was 3 unsupported, 2) was contrary to California statutes and 4 regulatory law concerning factors of suitability, with which 5 Petitioner alleges he has complied, and 3) violated his liberty 6 interest in parole. (Pet. 4-5, 7.) 7 II. 8 Because the petition was filed after April 24, 1996, the 9 Failure to State a Cognizable Claim effective date of the Antiterrorism and Effective Death Penalty 10 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 11 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 12 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 13 A district court may entertain a petition for a writ of 14 habeas corpus by a person in custody pursuant to the judgment of 15 a state court only on the ground that the custody is in violation 16 of the Constitution, laws, or treaties of the United States. 17 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 18 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 19 16 (2010) (per curiam). 20 Lindh 28 The Supreme Court has characterized as reasonable the 21 decision of the Court of Appeals for the Ninth Circuit that 22 California law creates a liberty interest in parole protected by 23 the Fourteenth Amendment Due Process Clause, which in turn 24 requires fair procedures with respect to the liberty interest. 25 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 26 27 However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates 28 3 1 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 2 Swarthout v. Cooke, 131 S.Ct. 859, 862. 3 rejected inmates’ claims that they were denied a liberty interest 4 because there was an absence of “some evidence” to support the 5 decision to deny parole. 6 7 8 9 10 11 12 13 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.) 14 Swarthout, 131 S.Ct. 859, 862. 15 petitioners had received the process that was due as follows: 16 17 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.... 18 19 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether 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. 4 1 [the petitioners] received due process. 2 Swarthout, 131 S.Ct. at 862. 3 noted that California’s “some evidence” rule is not a substantive 4 federal requirement, and correct application of California’s 5 “some evidence” standard is not required by the federal Due 6 Process Clause. 7 The Court in Swarthout expressly Id. at 862-63. Here, Petitioner argues that the evidence considered by the 8 BPH and reviewed by the California courts was insufficient to 9 support the denial of parole. In so arguing, Petitioner asks 10 this Court to engage in the very type of analysis foreclosed by 11 Swarthout. 12 point to a real possibility of constitutional error or that 13 otherwise would entitle Petitioner to habeas relief because 14 California’s “some evidence” requirement is not a substantive 15 federal requirement. 16 support the denial of parole is not within the scope of this 17 Court’s habeas review under 28 U.S.C. § 2254. 18 concludes that Petitioner’s claim concerning the sufficiency of 19 the evidence to support the unsuitability finding should be 20 dismissed. In this regard, Petitioner does not state facts that Review of the record for “some evidence” to The Court thus 21 Petitioner cites state law concerning the appropriate 22 factors of parole suitability and contends that the parole 23 decision was contrary to state law. 24 Petitioner’s claim or claims rest on state law, they are not 25 cognizable on federal habeas corpus. 26 not available to retry a state issue that does not rise to the 27 level of a federal constitutional violation. 28 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 5 To the extent that Federal habeas relief is Wilson v. Corcoran, 1 U.S. 62, 67-68 (1991). 2 state law are not cognizable in federal habeas corpus. 3 Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). Thus, Petitioner’s 4 claim concerning the application of California’s statutory and 5 regulatory law must be dismissed. 6 Alleged errors in the application of Souch v. Although Petitioner asserts that his right to due process of 7 law was violated by the decision, Petitioner does not set forth 8 any specific facts concerning his attendance at the parole 9 hearing, his opportunity to be heard, or his receipt of a 10 statement of reasons for the parole decision. 11 has not alleged facts pointing to a real possibility of a 12 violation of the minimal requirements of due process set forth in 13 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 14 U.S. 1 (1979). 15 transcript of the parole hearing or other documentation of the 16 parole process. Thus, Petitioner Further, Petitioner has not submitted any 17 A petition for habeas corpus should not be dismissed without 18 leave to amend unless it appears that no tenable claim for relief 19 can be pleaded were such leave granted. 20 F.2d 13, 14 (9th Cir. 1971). 21 Jarvis v. Nelson, 440 Although Petitioner cannot state a due process claim based 22 on state law or the BPH’s application of the “some evidence” 23 requirement, it is logically possible that Petitioner could 24 allege facts showing that in the course of the parole 25 proceedings, he suffered a violation of the minimal due process 26 requirements set forth in Greenholtz. 27 28 Accordingly, although the petition will be dismissed, Petitioner will be granted leave to file an amended petition. 6 1 III. 2 The instant petition must be dismissed for the reasons Amendment of the Petition 3 stated above. 4 first amended petition to cure the deficiencies. 5 advised that failure to file a petition in compliance with this 6 order (i.e., a completed petition with cognizable federal claims 7 clearly stated and with exhaustion of state remedies clearly 8 stated) within the allotted time will result in dismissal of the 9 petition and termination of the action. Petitioner will be given an opportunity to file a Petitioner is Petitioner is advised 10 that the amended petition should be entitled, “First Amended 11 Petition,” and it must refer to the case number in this action. 12 IV. 13 Accordingly, it is ORDERED that: 14 1) The petition for writ of habeas corpus is DISMISSED with 15 Disposition leave to amend; and 16 2) Petitioner is GRANTED thirty (30) days from the date of 17 service of this order to file an amended petition in compliance 18 with this order; and 19 3) The Clerk of the Court is DIRECTED to send Petitioner a 20 form for a petition for writ of habeas corpus pursuant to 28 21 U.S.C. § 2254. 22 23 IT IS SO ORDERED. 24 Dated: ie14hj May 11, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 7

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