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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAY ANTHONY JONES,
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Petitioner,
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v.
J. D. HARTLEY, Warden,

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Respondent.

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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

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition pursuant to 28 U.S.C. § 2254.

The

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matter has been referred to the Magistrate Judge pursuant to 28
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U.S.C. § 636(b)(1) and Local Rules 302 and 303.

Pending before

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the Court is the petition, which was filed on April 27, 2011.
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I.

Screening the Petition

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Rule 4 of the Rules Governing § 2254 Cases in the United
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States District Courts (Habeas Rules) requires the Court to make
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a preliminary review of each petition for writ of habeas corpus.
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The Court must summarily dismiss a petition "[i]f it plainly
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appears from the petition and any attached exhibits that the
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petitioner is not entitled to relief in the district court....”

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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990).

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grounds of relief available to the Petitioner; 2) state the facts

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supporting each ground; and 3) state the relief requested.

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Notice pleading is not sufficient; rather, the petition must

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state facts that point to a real possibility of constitutional

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error.

Habeas Rule 2(c) requires that a petition 1) specify all

Rule 4, Advisory Committee Notes, 1976 Adoption;

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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.

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Allison, 431 U.S. 63, 75 n. 7 (1977)).

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that are vague, conclusory, or palpably incredible are subject to

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summary dismissal.

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Cir. 1990).

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Allegations in a petition

Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

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Advisory Committee Notes to Habeas Rule

Here, Petitioner alleges that he is an inmate of the Avenal

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State Prison serving a sentence of seven (7) years to life for

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first degree murder imposed by the Merced County Superior Court

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in 1976.

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California’s Board of Parole Hearings (BPH) made on or about

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March 3, 2009, after a hearing, to deny Petitioner parole for

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three years because he was unsuitable.

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alleges that the denial of parole violated his right to due

(Pet. 1.)

Petitioner challenges the decision of

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(Pet. 4.)

Petitioner

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process of law protected by the Fourteenth Amendment because 1)

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the decision rested on unchanging circumstances and was

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unsupported, 2) was contrary to California statutes and

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regulatory law concerning factors of suitability, with which

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Petitioner alleges he has complied, and 3) violated his liberty

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interest in parole.

(Pet. 4-5, 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 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.

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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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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
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
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

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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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[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.

Here, Petitioner argues that the evidence considered by the

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BPH and reviewed by the California courts was insufficient to

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support the denial of parole.

In so arguing, Petitioner asks

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this Court to engage in the very type of analysis foreclosed by

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Swarthout.

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point to a real possibility of constitutional error or that

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otherwise would entitle Petitioner to habeas relief because

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California’s “some evidence” requirement is not a substantive

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federal requirement.

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support the denial of parole is not within the scope of this

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Court’s habeas review under 28 U.S.C. § 2254.

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concludes that Petitioner’s claim concerning the sufficiency of

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the evidence to support the unsuitability finding should be

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dismissed.

In this regard, Petitioner does not state facts that

Review of the record for “some evidence” to

The Court thus

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Petitioner cites state law concerning the appropriate

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factors of parole suitability and contends that the parole

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decision was contrary to state law.

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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.

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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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To the extent that

Federal habeas relief is

Wilson v. Corcoran,

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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). Thus, Petitioner’s

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claim concerning the application of California’s statutory and

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regulatory law must be dismissed.

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Alleged errors in the application of
Souch v.

Although Petitioner asserts that his right to due process of

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law was violated by the decision, Petitioner does not set forth

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any specific facts concerning his attendance at the parole

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hearing, his opportunity to be heard, or his receipt of a

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statement of reasons for the parole decision.

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has not alleged facts pointing to a real possibility of a

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violation of the minimal requirements of due process set forth in

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Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442

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U.S. 1 (1979).

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transcript of the parole hearing or other documentation of the

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parole process.

Thus, Petitioner

Further, Petitioner has not submitted any

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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

Although Petitioner cannot state a due process claim based

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on state law or the BPH’s application of the “some evidence”

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requirement, it is logically possible that Petitioner could

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allege facts showing that in the course of the parole

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proceedings, he suffered a violation of the minimal due process

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requirements set forth in Greenholtz.

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Accordingly, although the petition will be dismissed,
Petitioner will be granted leave to file an amended petition.
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III.

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The instant petition must be dismissed for the reasons

Amendment of the Petition

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stated above.

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first amended petition to cure the deficiencies.

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advised that failure to file a petition in compliance with this

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order (i.e., a completed petition with cognizable federal claims

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clearly stated and with exhaustion of state remedies clearly

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stated) within the allotted time will result in dismissal of the

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petition and termination of the action.

Petitioner will be given an opportunity to file a
Petitioner is

Petitioner is advised

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that the amended petition should be entitled, “First Amended

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Petition,” and it must refer to the case number in this action.

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IV.

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Accordingly, it is ORDERED that:

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1) The petition for writ of habeas corpus is DISMISSED with

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Disposition

leave to amend; and

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2) Petitioner is GRANTED thirty (30) days from the date of

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service of this order to file an amended petition in compliance

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with this order; and

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3) The Clerk of the Court is DIRECTED to send Petitioner a

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form for a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254.

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IT IS SO ORDERED.

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Dated:
ie14hj

May 11, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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