Jones v. Hartley

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 7/29/2011 recommending that 8 Amended Petition for Writ of Habeas Corpus be dismissed without leave to amend. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/6/2011. (Lundstrom, T)

Download PDF
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 ) ) ) ) ) ) ) ) ) ) ) ) 17 18 1:11-cv—00666-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE FIRST AMENDED PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM COGNIZABLE IN A PROCEEDING PURSUANT TO 28 U.S.C. § 2254 (DOC. 8) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS AFTER SERVICE 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition pursuant to 28 U.S.C. § 2254. 22 matter has been referred to the Magistrate Judge pursuant to 28 23 U.S.C. § 636(b)(1) and Local Rules 302 and 303. 24 the Court is the first amended petition (FAP), which was filed on 25 May 24, 2011. 26 I. 27 Rule 4 of the Rules Governing § 2254 Cases in the United 28 The Pending before Screening the Petition States District Courts (Habeas Rules) requires the Court to make 1 1 a preliminary review of each petition for writ of habeas corpus. 2 The Court must summarily dismiss a petition "[i]f it plainly 3 appears from the petition and any attached exhibits that the 4 petitioner is not entitled to relief in the district court....” 5 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 6 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 7 1990). 8 grounds of relief available to the Petitioner; 2) state the facts 9 supporting each ground; and 3) state the relief requested. Habeas Rule 2(c) requires that a petition 1) specify all 10 Notice pleading is not sufficient; rather, the petition must 11 state facts that point to a real possibility of constitutional 12 error. 13 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 14 Allison, 431 U.S. 63, 75 n. 7 (1977)). 15 that are vague, conclusory, or palpably incredible are subject to 16 summary dismissal. 17 Cir. 1990). 18 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 19 corpus either on its own motion under Habeas Rule 4, pursuant to 20 the respondent's motion to dismiss, or after an answer to the 21 petition has been filed. 22 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 23 (9th Cir. 2001). 24 Advisory Committee Notes to Habeas Rule In the FAP, Petitioner alleges that he is an inmate of the 25 Avenal State Prison serving a sentence of seven (7) years to life 26 for first degree murder imposed by the Merced County Superior 27 Court in 1976. 28 California’s Board of Parole Hearings (BPH), made at an (FAP 1.) Petitioner challenges the decision of 2 1 unspecified time, to deny Petitioner parole. 2 Petitioner alleges that his right to due process of law under the 3 Fourteenth Amendment was denied because the BPH relied on the 4 unchanging factors of Petitioner’s commitment offense. 5 Petitioner alleges that it turned his eligibility for parole into 6 a de facto life sentence without the possibility of parole. 7 (Id.) (Id. at 3.) (Id. ) 8 II. 9 Because the petition was filed after April 24, 1996, the Failure to State a Cognizable Claim 10 effective date of the Antiterrorism and Effective Death Penalty 11 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 12 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 13 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 14 A district court may entertain a petition for a writ of 15 habeas corpus by a person in custody pursuant to the judgment of 16 a state court only on the ground that the custody is in violation 17 of the Constitution, laws, or treaties of the United States. 18 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 19 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 20 16 (2010) (per curiam). 21 Lindh 28 The Supreme Court has characterized as reasonable the 22 decision of the Court of Appeals for the Ninth Circuit that 23 California law creates a liberty interest in parole protected by 24 the Fourteenth Amendment Due Process Clause, which in turn 25 requires fair procedures with respect to the liberty interest. 26 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 27 28 However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates 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 BPH improperly relied on 8 evidence relating to Petitioner’s crime. 9 Petitioner asks this Court to engage in the very type of analysis In so arguing, 10 foreclosed by Swarthout. 11 state facts that point to a real possibility of constitutional 12 error or that otherwise would entitle Petitioner to habeas relief 13 because California’s “some evidence” requirement is not a 14 substantive federal requirement. 15 evidence” to support the denial of parole is not within the scope 16 of this Court’s habeas review under 28 U.S.C. § 2254. 17 thus concludes that Petitioner’s claim concerning the evidence 18 supporting the unsuitability finding should be dismissed. In this regard, Petitioner does not Review of the record for “some The Court 19 A petition for habeas corpus should not be dismissed without 20 leave to amend unless it appears that no tenable claim for relief 21 can be pleaded were such leave granted. 22 F.2d 13, 14 (9th Cir. 1971). 23 Jarvis v. Nelson, 440 Although Petitioner asserts that his right to due process of 24 law was violated by the BPH’s decision, Petitioner does not set 25 forth any specific facts concerning his attendance at the parole 26 hearing, his opportunity to be heard, or his receipt of a 27 statement of reasons for the parole decision. 28 has not alleged facts pointing to a real possibility of a 5 Thus, Petitioner 1 violation of the minimal requirements of due process set forth in 2 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 3 U.S. 1 (1979). 4 transcript of the parole hearing or other documentation of the 5 parole process. 6 Further, Petitioner has not submitted any Petitioner’s initial petition suffered from essentially the 7 same defects. 8 petition because it was logically possible that Petitioner could 9 allege facts showing that in the course of the parole Petitioner was given leave to file a first amended 10 proceedings, he suffered a violation of the minimal due process 11 requirements set forth in Greenholtz. 12 despite having been given an opportunity to allege facts that 13 would support such a claim, Petitioner has failed to do so. 14 (Doc. 6, 6.) However, The court concludes that it would be futile to grant 15 Petitioner further leave to amend the petition. 16 therefore, be recommended that the FAP be dismissed without leave 17 to amend. 18 III. 19 Unless a circuit justice or judge issues a certificate of It will, Certificate of Appealability 20 appealability, an appeal may not be taken to the Court of Appeals 21 from the final order in a habeas proceeding in which the 22 detention complained of arises out of process issued by a state 23 court. 24 U.S. 322, 336 (2003). 25 only if the applicant makes a substantial showing of the denial 26 of a constitutional right. 27 petitioner must show that reasonable jurists could debate whether 28 the petition should have been resolved in a different manner or 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). 6 Under this standard, a 1 that the issues presented were adequate to deserve encouragement 2 to proceed further. 3 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 4 certificate should issue if the Petitioner shows that jurists of 5 reason would find it debatable whether the petition states a 6 valid claim of the denial of a constitutional right and that 7 jurists of reason would find it debatable whether the district 8 court was correct in any procedural ruling. 9 529 U.S. 473, 483-84 (2000). 10 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 11 the claims in the habeas petition, generally assesses their 12 merits, and determines whether the resolution was debatable among 13 jurists of reason or wrong. 14 applicant to show more than an absence of frivolity or the 15 existence of mere good faith; however, it is not necessary for an 16 applicant to show that the appeal will succeed. 17 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 18 A district court must issue or deny a certificate of 19 appealability when it enters a final order adverse to the 20 applicant. 21 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 22 debate whether the petition should have been resolved in a 23 different manner. 24 of the denial of a constitutional right. 25 recommended that the Court decline to issue a certificate of 26 appealability. 27 /// 28 /// Petitioner has not made a substantial showing 7 Accordingly, it will be 1 IV. 2 Accordingly, it is RECOMMENDED that: 3 1) 4 2) The Court DECLINE to issue a certificate of appealability; and 7 8 The first amended petition be DISMISSED without leave to amend; and 5 6 Recommendations 3) The Clerk be DIRECTED to close the action because dismissal will terminate the proceeding in its entirety. 9 These findings and recommendations are submitted to the 10 United States District Court Judge assigned to the case, pursuant 11 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 12 the Local Rules of Practice for the United States District Court, 13 Eastern District of California. 14 being served with a copy, any party may file written objections 15 with the Court and serve a copy on all parties. 16 should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendations.” 18 and filed within fourteen (14) days (plus three (3) days if 19 served by mail) after service of the objections. 20 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 21 636 (b)(1)(C). 22 objections within the specified time may waive the right to 23 appeal the District Court’s order. 24 1153 (9th Cir. 1991). 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 Martinez v. Ylst, 951 F.2d 25 26 IT IS SO ORDERED. 27 Dated: ie14hj July 29, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 8

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?