Hawthorne v. Hartley

Filing 11

ORDER DISMISSING Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Enter Judgment and Close Case; ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY signed by Chief Judge Anthony W. Ishii on 02/04/2012. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RALPH KELLY HAWTHORNE, JR.,
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Petitioner,
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v.
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JAMES D. HARTLEY, Warden,
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Respondent.
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____________________________________)

1:11-CV-01618 AWI BAM HC
ORDER DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS
ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND CLOSE CASE
ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On September 23, 2011, Petitioner filed the instant petition for writ of habeas corpus. He

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challenges a June 10, 2010, California Board of Parole Hearings decision denying parole. He claims

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the decision of the parole board violated his due process rights.

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A. Preliminary Review of Petition

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Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:

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If it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and direct the clerk
to notify the petitioner.

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The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of

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habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to

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dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th

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Cir.2001). A petition for habeas corpus should not be dismissed without leave to amend unless it

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appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson,

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440 F.2d 13, 14 (9th Cir. 1971).

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B. Failure to State a Cognizable Ground for Relief
On January 24, 2011, the Supreme Court decided Swarthout v. Cooke, ___ U.S.___, 131

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S.Ct. 859, 2011 WL 197627 (2011), and held that “the responsibility for assuring that the

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constitutionally adequate procedures governing California’s parole system are properly applied rests

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with California courts, and is no part of the Ninth Circuit’s business.” Id., 131 S.Ct. at 863. The

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Supreme Court stated that a federal habeas court’s inquiry into whether a prisoner denied parole

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received due process is limited to determining whether the prisoner “was allowed an opportunity to

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be heard and was provided a statement of the reasons why parole was denied.” Id., at 862, citing,

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Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). Review of

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the instant case reveals Petitioner was present at his parole hearing, was given an opportunity to be

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heard, and was provided a statement of reasons for the parole board’s decision. (See Attachments to

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Petition.) According to the Supreme Court, this is “the beginning and the end of the federal habeas

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courts’ inquiry into whether [the prisoner] received due process.” Swarthout, 131 S.Ct. at 862. “The

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Constitution does not require more [process].” Greenholtz, 442 U.S. at 16. Therefore, the instant

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petition does not present cognizable claims for relief, and no cognizable claim could be raised if

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leave to amend were granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). The petition must be

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dismissed.

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C. Certificate of Appealability

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-

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El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue

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a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

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(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court
of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial
a person charged with a criminal offense against the United States, or to test the
validity of such person’s detention pending removal proceedings.

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(c)
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(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from–

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(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court; or

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(B) the final order in a proceeding under section 2255.
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(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.

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(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of appealability
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“if jurists of reason could disagree with the district court’s resolution of his constitutional claims or
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that jurists could conclude the issues presented are adequate to deserve encouragement to proceed
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further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the
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petitioner is not required to prove the merits of his case, he must demonstrate “something more than
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the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at
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338.
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In the present case, the Court finds that reasonable jurists would not find the Court’s
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determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or
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deserving of encouragement to proceed further. Petitioner has not made the required substantial
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showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a
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certificate of appealability.
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ORDER
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Accordingly, IT IS HEREBY ORDERED:
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1) The petition for writ of habeas corpus is SUMMARILY DISMISSED with prejudice;
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2) The Clerk of Court is DIRECTED to enter judgment and close the case; and
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3) The Court DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.
Dated:
0m8i78

February 4, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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