Boykin v. Wofford

Filing 9

ORDER Dismissing the First Amended Petition for Writ of Habeas Corpus without Leave to Amend; ORDER Declining to Issue a Certificate of Appealability; ORDER Directing the Clerk to Close the Action, signed by Magistrate Judge Barbara A. McAuliffe on 3/11/14. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 SHAWN BOYKIN,
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Petitioner,
v.

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Case No. 1:13-cv-01592-BAM-HC
ORDER DISMISSING THE FIRST AMENDED
PETITION FOR WRIT OF HABEAS CORPUS
WITHOUT LEAVE TO AMEND (DOC. 8)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

WOFFORD,
Respondent.

ORDER DIRECTING THE CLERK TO CLOSE
THE ACTION

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Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a first amended petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

Pursuant to 28 U.S.C. § 636(c)(1),

Petitioner has consented to the jurisdiction of the United States
Magistrate Judge to conduct all further proceedings in the case,
including the entry of final judgment, by manifesting Petitioner’s
consent in a writing signed by Petitioner and filed by Petitioner on
October 11, 2013.
Pending before the Court is the first amended petition (FAP),
which was filed on November 14, 2013.
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I.

Screening the Petition

2

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

3 effective date of the Antiterrorism and Effective Death Penalty Act
4 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

5 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
6 1499 (9th Cir. 1997).
7

Rule 4 of the Rules Governing ' 2254 Cases in the United States

8 District Courts (Habeas Rules) requires the Court to make a
9 preliminary review of each petition for writ of habeas corpus.

The

10 Court must summarily dismiss a petition "[i]f it plainly appears
11 from the petition and any attached exhibits that the petitioner is
12 not entitled to relief in the district court....@

Habeas Rule 4;

13 O=Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
14 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

Habeas Rule

15 2(c) requires that a petition 1) specify all grounds of relief
16 available to the Petitioner; 2) state the facts supporting each
17 ground; and 3) state the relief requested.

Notice pleading is not

18 sufficient; rather, the petition must state facts that point to a
19 real possibility of constitutional error.

Rule 4, Advisory

20 Committee Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420
21 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).
22 Allegations in a petition that are vague, conclusory, or palpably

23 incredible are subject to summary dismissal.

Hendricks v. Vasquez,

24 908 F.2d at 491.
25

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

26 corpus either on its own motion under Habeas Rule 4, pursuant to the
27 respondent's motion to dismiss, or after an answer to the petition
28 has been filed.

Advisory Committee Notes to Habeas Rule 8, 1976
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1 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
2 2001).
3

A petition for habeas corpus should not be dismissed without

4 leave to amend unless it appears that no tenable claim for relief
5 can be pleaded were such leave granted.

Jarvis v. Nelson, 440 F.2d

6 13, 14 (9th Cir. 1971).
7

Here, Petitioner alleges that he is serving a sentence of

8 fifteen years to life plus one year imposed by the Los Angeles
9 County Superior Court in 1986 for second degree murder with a gun
10 enhancement.

Petitioner challenges the decision of California’s

11 Board of Parole Hearings (BPH) made after a hearing held on or about
12 September 26, 2011, finding that Petitioner was unsuitable for
13 parole.

Petitioner alleges that he was only seventeen years old

14 when he committed the commitment offense, and that the BPH failed
15 duly to consider his juvenile conviction as a mitigating factor and
16 an indication of lesser culpability in violation of his federal
17 right to due process of law and liberty interest as well as
18 specified state regulations and state court decisions.
19 at 4-9.)

(FAP, doc. 8

Petitioner further appears to contend that being denied

20 parole when he was forty-two years old was cruel and unusual
21 punishment.
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II.

Dismissal of State Law Claims

23

Federal habeas relief is available to state prisoners only to

24 correct violations of the United States Constitution, federal laws,
25 or treaties of the United States.

28 U.S.C. ' 2254(a).

Federal

26 habeas relief is not available to retry a state issue that does not
27 rise to the level of a federal constitutional violation.

Wilson v.

28 Corcoran, 562 U.S. C , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire,
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1 502 U.S. 62, 67-68 (1991).

Alleged errors in the application of

2 state law are not cognizable in federal habeas corpus.
3 Schaivo, 289 F.3d 616, 623 (9th Cir. 2002).
4 state court's interpretation of state law.
5 F.3d 1380, 1389 (9th Cir. 1996).

Souch v.

The Court accepts a
Langford v. Day, 110

In a habeas corpus proceeding,

6 this Court is bound by the California Supreme Court=s interpretation
7 of California law unless it is determined that the interpretation is

8 untenable or a veiled attempt to avoid review of federal questions.
9 Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
10

Here, there is no indication that any state court’s

11 interpretation or application of state law was associated with an
12 attempt to avoid review of federal questions.

Thus, this Court is

13 bound by the state court’s interpretation and application of state
14 law.
15

Insofar as Petitioner rests his claim or claims solely on state

16 regulatory, statutory, and decisional law, Petitioner fails to state
17 facts that would entitle him to relief in a proceeding pursuant to
18 § 2254.

Thus, insofar as Petitioner’s claim or claims are based on

19 an application or interpretation of California law, Petitioner’s
20 claims must be dismissed because they are not cognizable in a
21 proceeding pursuant to 28 U.S.C. § 2254.
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Further, because Petitioner’s state claims are defective not

23 because of any dearth of factual allegations, but rather because of
24 their nature as being based solely on state law, Petitioner could
25 not state tenable state law claims that would warrant relief in this
26 proceeding even if leave to amend were granted.
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Thus, Petitioner’s state law claims will be dismissed without

28 leave to amend.
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III.

Claims concerning the Denial of Parole

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Petitioner claims that the denial of parole constituted cruel

3 and unusual punishment and a denial of due process because his youth
4 was not adequately considered or weighed by the BPH.
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A.

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Title 28 U.S.C. ' 2254 provides in pertinent part:

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Standard of Decision

(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claimB
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

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(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

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Clearly established federal law refers to the holdings, as

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18 opposed to the dicta, of the decisions of the Supreme Court as of
19 the time of the relevant state court decision.

Cullen v.

20 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
21 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,
22 412 (2000).

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A state court=s decision contravenes clearly established Supreme

24 Court precedent if it reaches a legal conclusion opposite to, or
25 substantially different from, the Supreme Court's or concludes
26 differently on a materially indistinguishable set of facts.
27 Williams v. Taylor, 529 U.S. at 405-06.

The state court need not

28 have cited Supreme Court precedent or have been aware of it, "so
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1 long as neither the reasoning nor the result of the state-court
2 decision contradicts [it]."

Early v. Packer, 537 U.S. 3, 8 (2002).

3 A state court unreasonably applies clearly established federal law
4 if it either 1) correctly identifies the governing rule but then
5 applies it to a new set of facts in a way that is objectively
6 unreasonable, or 2) extends or fails to extend a clearly established
7 legal principle to a new context in a way that is objectively

8 unreasonable.

Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir.

9 2002); see, Williams, 529 U.S. at 407.
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An application of clearly established federal law is

11 unreasonable only if it is objectively unreasonable; an incorrect or
12 inaccurate application is not necessarily unreasonable.
13 529 U.S. at 410.

Williams,

A state court=s determination that a claim lacks

14 merit precludes federal habeas relief as long as it is possible that
15 fairminded jurists could disagree on the correctness of the state
16 court=s decision.
17 786 (2011).

Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770,

Even a strong case for relief does not render the state

18 court=s conclusions unreasonable.

Id.

In order to obtain federal

19 habeas relief, a state prisoner must show that the state court=s
20 ruling on a claim was Aso lacking in justification that there was an
21 error well understood and comprehended in existing law beyond any
22 possibility for fairminded disagreement.@

Id. at 786-87.

The

23 standards set by ' 2254(d) are Ahighly deferential standard[s] for
24 evaluating state-court rulings@ which require that state court
25 decisions be given the benefit of the doubt, and the Petitioner bear
26 the burden of proof.

Cullen v. Pinholster, 131 S.Ct. at 1398.

27 Further, habeas relief is not appropriate unless each ground
28 supporting the state court decision is examined and found to be
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1 unreasonable under the AEDPA.

Wetzel v. Lambert, -BU.S.--, 132

2 S.Ct. 1195, 1199 (2012).
B.

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Cruel and Unusual Punishment

It is established that there is no right under the Federal

5 Constitution to be conditionally released before the expiration of a
6 valid sentence, and the states are under no duty to offer parole to
7 their prisoners.

8 (2011).

Swarthout v. Cooke, 562 U.S. -, 131 S.Ct. 859, 862

A criminal sentence that is “grossly disproportionate” to

9 the crime for which a defendant is convicted may violate the Eighth
10 Amendment.

Lockyer v. Andrade, 538 U.S. 63, 72 (2003); Harmelin v.

11 Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring);
12 Rummel v. Estelle, 445 U.S. 263, 271 (1980).

Outside of the capital

13 punishment context, the Eighth Amendment prohibits only sentences
14 that are extreme and grossly disproportionate to the crime.

United

15 States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin
16 v. Michigan, 501 U.S. 957, 1001, (1991) (Kennedy, J., concurring)).
17 Such instances are “exceedingly rare” and occur in only “extreme”
18 cases.
19 272.

Lockyer v. Andrade, 538 U.S. at 72 73; Rummel, 445 U.S. at

So long as a sentence does not exceed statutory maximums, it

20 will not be considered cruel and unusual punishment under the Eighth
21 Amendment.

See United States v. Mejia Mesa, 153 F.3d 925, 930 (9th

22 Cir. 1998); United States v. McDougherty, 920 F.2d 569, 576 (9th

23 Cir. 1990).
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The Eighth Amendment bars capital punishment for children,

25 Roper v. Simmons, 543 U.S. 551, 560 (2005), and a sentence of life
26 without the possibility of parole for a child who committed a non27 homicide offense, Graham v. Florida, 560 U.S. 48 (2010).

Petitioner

28 relies on Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 2464 (2012),
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1 in which the Court held that a mandatory sentence of life without
2 the possibility of parole for an offender who committed an otherwise
3 capital murder while under the age of eighteen (fourteen years) was
4 cruel and unusual punishment in violation of the Eighth Amendment.
5 The Court determined that the sentencing tribunal must be able to
6 consider the mitigating qualities of youth, such as lessened
7 culpability and greater capacity for change, in order to determine

8 whether a harsh penalty is proportionate for the offender.
9 2464-65, 2467.

Id. at

The Court in Miller relied on Graham v. Florida to

10 require that the state provide “some meaningful opportunity to
11 obtain release based on demonstrated maturity and rehabilitation.”
12 Id. at 2469 (quoting Graham, 130 S.Ct. at 2030).
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Petitioner further relies on Thompson v. Oklahoma, 487 U.S.

14 815, 835 (1988), holding that the Eighth and Fourteenth Amendments
15 prohibit the death penalty for an offender who committed first
16 degree murder when he was fifteen and prosecuted pursuant to state
17 statutes that set no minimum age for imposition of the death
18 penalty.

The Court in Thompson considered whether the juvenile's

19 culpability should be measured by the same standard as that of an
20 adult, and then whether the application of the death penalty to the
21 class of juvenile offenders measurably contributes to the social
22 purposes that are served by the death penalty, id. at 833.

The

23 Court recognized the reduced culpability and control of juvenile
24 offenders, id. at 825 n.23, 834-36, and it noted that the death
25 penalty’s special retributive and deterrent purposes were thus not
26 served with respect to offenders who were children.
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Id. at 836-38.

Petitioner also cites Johnson v. Texas, 509 U.S. 350, 367-71

28 (1993), in which the Court recognized that a defendant’s youth is a
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1 relevant mitigating circumstance that must be subject to the
2 effective consideration of a capital sentencing jury if a death
3 sentence is to comport with the Eighth and Fourteenth Amendments,
4 and held that it was sufficient to instruct the jury to decide
5 whether there was “a probability that [petitioner] would commit
6 criminal acts of violence that would constitute a continuing threat
7 to society,” and that, in answering the special issues, the jury

8 could consider all the mitigating evidence that had been presented
9 during the guilt and punishment phases of petitioner's trial.
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In summary, Petitioner relies on authorities that limit capital

11 punishment, sentences of life without the possibility of parole
12 (LWOP) for a juvenile’s non-homicide offenses, or mandatory
13 sentences of LWOP for a juvenile’s otherwise capital murder.
14 However, he cites no clearly established federal law within the
15 meaning of 28 U.S.C. § 2254(d)(1) that applies to sentences of
16 fifteen years to life plus one year for second degree murder with a
17 gun enhancement.

No controlling Supreme Court precedent has been

18 brought to the attention of the Court that holds that a sentence of
19 fifteen years to life with the possibility of parole is cruel and
20 unusual punishment for an offender who was a minor when he committed
21 a murder.
22

The authorities Petitioner relies upon establish that in

23 capital sentencing proceedings, meaningful consideration of the
24 offender’s youth as a mitigating factor must be possible.

However,

25 there is no clearly established federal law requiring a state
26 sentencing tribunal, let alone a state parole authority acting in
27 its discretion, to consider specific mitigating factors before it
28 imposes a sentence of fifteen years to life with the possibility of
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1 parole.

Cf. Miller, 132 S.Ct. at 2464–69 (a sentencing court may be

2 required to consider a defendant's youth and other factors before
3 imposing a sentence of life without the possibility of parole).
4

In any event, the transcript of the parole suitability hearing

5 reflects that the BPH expressly referred to the fact that Petitioner
6 was seventeen years old at the time of the commitment offense and
7 forty-two at the time of the parole hearing.

(FAP, doc. 8, at 21.)

8 Further, the BPH asked Petitioner to describe the difference between
9 Petitioner at the time of the crime and the Petitioner at the time
10 of the parole hearing, and Petitioner responded.

(Id. at 45-49.)

11 Likewise, the BPH’s decision rested on facts that necessarily
12 implied knowledge and consideration of Petitioner’s youth at the
13 time of the offense.

The BPH concluded that the offense was cruel

14 and dispassionate in that it had occurred at school with a gun that
15 Petitioner had brought into the school and then had dropped or
16 thrown to a co-participant during a disagreement about use of a
17 telephone with the victim, who was also a young, former student.
18 The BPH relied on Petitioner’s previous juvenile history, including
19 his failing successfully to complete previous grants of juvenile
20 probation, and his being influenced by older persons who drew him
21 into gang activity after Petitioner left home as a minor in order to
22 cohabit with a female.

Further, the BPH relied on the fact that

23 although there had been a few very good years of behavior and
24 participation in programming by Petitioner in prison, those years
25 had been preceded by twenty years of negative behavior and minimal
26 programming.
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(Doc. 8, 122-29.)

Thus, even if the authorities upon which Petitioner relies were

28 to apply to parole decisions such as the decision before the Court,
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1 the record clearly reflects that the BPH was aware of and considered
2 Petitioner’s youth at the time of the crime and Petitioner’s
3 development during his incarceration.

The BPH gave guidance to

4 Petitioner for the future and determined that Petitioner’s parole
5 suitability would be considered in three years.

Thus, the record

6 reflects that the BPH gave Petitioner a meaningful opportunity to
7 improve and to demonstrate maturity with respect to parole

8 suitability.

There is no basis in the record to support a

9 conclusion that Petitioner’s sentence is tantamount to life without
10 the possibility of parole.
11

Further, the Petitioner’s continued confinement, which is

12 authorized by state law, is not grossly disproportionate to the
13 violent crime of which he was convicted.

Silva v. McDonald, 891

14 F.Supp.2d 1116, 1131 (C.D.Cal. 2012) (holding that a sentence of
15 forty years to life with the possibility of parole during the
16 perpetrator’s natural life for two attempted murders committed when
17 the perpetrator was sixteen years old was not cruel and unusual
18 punishment); see, Martinez v. Duffy, 2014 WL 547594, *1-*2 (No. C19 13-5014 EMC (pr), N.D.Cal. Feb. 7, 2014) (sentence of twenty-five
20 years to life for murder as an aider and abettor committed when the
21 petitioner was seventeen was not cruel and unusual, and a state
22 court decision to that effect did not warrant relief pursuant to

23 § 2254(d); Campo v. Swarthout, 2013 WL 5962930, *1 n.1 (No. 2:11–cv–
24 1622 LKK DAD P, E.D.Cal. Feb. 11, 2013) (Supreme Court cases did not
25 govern because the petitioner was sentenced to twenty-seven years to
26 life for first degree murder, not death or life without the
27 possibility of parole); Khalifa v. Cash, 2012 WL 1901934 at *30
28 (No. ED CV 10–1446–GAF (PLA), C.D.Cal. 2012), adopted at Khalifa v.
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1 Cash, 2012 WL 1901932 (C.D.Cal. May 24, 2012) (denying relief under
2 § 2254 for one sentenced to twenty-five years to life for a first
3 degree murder committed when the offender was fifteen years old).
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With respect to adult offenders, it has been held that a

5 sentence of fifty years to life for murder with use of a firearm is
6 not grossly disproportionate, Plasencia v. Alameida, 467 F.3d 1190,
7 1204 (9th Cir. 2006), and a sentence of life imprisonment for first

8 degree murder has been held not to be cruel and unusual punishment
9 under the Eighth Amendment, United States v. LaFleur, 971 F.2d 200,
10 211 (9th Cir. 1991).
11

In summary, Petitioner’s sentence was not a violation of the

12 Eighth and Fourteenth Amendments, and a state court decision to that
13 effect was not contrary to, or an unreasonable application of
14 clearly established federal law.

Petitioner’s allegations

15 concerning his continued incarceration do not entitle him to relief
16 in this proceeding pursuant to 28 U.S.C. § 2254.
17

Because the complete transcript of the parole suitability

18 proceedings is before the Court, Petitioner could not state a
19 tenable Eighth Amendment claim even if leave to amend the petition
20 were granted.

The Court will thus dismiss Petitioner’s claim of

21 cruel and unusual punishment without leave to amend.
C.

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Denial of Due Process

Petitioner argues that his liberty interest and right to due

24 process of law were violated by the BPH’s parole decision because
25 the BPH did not properly weigh the mitigating factor of Petitioner’s
26 youth.

Petitioner contends that the determination that Petitioner

27 was unsuitable for parole because he presented an unreasonable
28 danger to society if released was unsupported by the evidence.
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1 Petitioner argues that because of his minority at the time of the
2 offense and the passage of time, the character of the commitment
3 offense was no longer probative of danger to the public.
The Supreme Court has characterized as reasonable the decision

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5 of the Court of Appeals for the Ninth Circuit that California law
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creates a liberty interest in parole protected by the Fourteenth
Amendment Due Process Clause, which in turn requires fair procedures
with respect to the liberty interest.

10 B, 131 S.Ct. 859, 861-62 (2011).

Swarthout v. Cooke, 562 U.S.

However, the procedures required

11 for a parole determination are the minimal requirements set forth in
12 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442
13

U.S. 1, 12 (1979).1

Swarthout v. Cooke, 131 S.Ct. 859, 862.

In

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Swarthout, the Court rejected inmates’ claims that they were denied
a liberty interest because there was an absence of some evidence to

17 support the decision to deny parole.
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There is no right under the Federal Constitution
to be conditionally released before the expiration of

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The Court stated:

1

In Greenholtz, the Court held that a formal hearing is not required with

21 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
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 retrospective
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.

22 a statement of reasons for the decision made.

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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.)

9 Swarthout, 131 S.Ct. 859, 862.
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The Court concluded that the

petitioners had received the process that was due as follows:
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....
That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
[the petitioners] received due process.

17 Swarthout, 131 S.Ct. at 862.

The Court in Swarthout expressly noted

18 that California’s “some evidence” rule is not a substantive federal
19 requirement, and correct application of California’s “some evidence”
20 standard is not required by the Federal Due Process Clause.

Id. at

21 862-63.
22

Here, Petitioner’s claim concerning the BPH’s weighing of his

23 youth constitutes a challenge to the adequacy of the BPH’s
24 consideration of Petitioner’s youth and to the weight and
25 sufficiency of the evidence supporting the BPH’s determination that
26 Petitioner remained dangerous to the public safety.

In this claim,

27 Petitioner is raising a “some evidence” claim because he is
28 essentially challenging the sufficiency of the evidence to support
14

1 the BPH’s finding of dangerousness.
In this claim, Petitioner does not state facts that point to a

2

3 real possibility of constitutional error or that otherwise would
4 entitle Petitioner to habeas relief because California’s “some
5 evidence” requirement is not a substantive federal requirement.
6 Review of the record for the sufficiency of “some evidence” to
7 support the denial of parole is not within the scope of this Court’s

8 habeas review under 28 U.S.C. § 2254.
The transcript of the parole suitability hearing held on

9

10 September 26, 2011 (doc. 8, 18-130), reflects that Petitioner was
11 present at the hearing with counsel, who had reviewed all
12 documentation before the hearing.

Petitioner testified at length

13 concerning various parole suitability factors, including the facts
14 of the commitment offense; Petitioner’s attitude towards the
15 offense; Petitioner’s programming, behavior, and development in
16 prison; and his parole plans.

(Id. at 29-121.)

17 counsel and Petitioner made closing statements.

Petitioner’s
(Id. at 105-17.)

18 Petitioner was present when the panel announced the reasons for its
19 decision that Petitioner posed an unreasonable risk of danger if
20 released, which included the nature of the commitment offense,
21 Petitioner’s lack of credibility with respect to his version of the
22 commitment offense, Petitioner’s prior criminality and gang

23 activity, and his extensive history of misbehavior in prison
24 preceding a shorter period of successful adjustment.

(Id. at 122-

25 31.)
26

It thus appears that Petitioner received all process that was

27 due with respect to the suitability hearing.
28

The documentation

submitted by Petitioner as an attachment to the FAP demonstrates
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1 that Petitioner received the appropriate procedures, the panel
2 members considered the pertinent factors of parole suitability, and
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5
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a decision based on those factors was made and articulated to the
Petitioner.
With respect to substantive due process, the substantive

7 component of due process protects against governmental interference

8 with those rights “implicit in the concept of ordered liberty.”
9 Palko v. Connecticut, 302 U.S. 319, 324-25 (1937).
10
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government to infringe fundamental liberty interests, such as the
right to liberty, no matter what process is provided, unless the
infringement is narrowly tailored to serve a compelling state

14 interest.
15

It forbids the

Reno v. Flores, 507 U.S. 292, 301-02 (1993).

Here, Petitioner has failed to allege facts warranting a

16 conclusion that the BPH’s decision infringed a federally protected,
17
fundamental right. Petitioner’s rather conclusional allegations do
18
not state facts that point to a real possibility of constitutional
19
20 error.
21

Further, it is established that even where state law creates a

22 liberty interest in parole, there is no federal right to be

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conditionally released before the expiration of a valid sentence.
Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir. 2011) (citing
Swarthout v. Cooke, 131 S.Ct. at 861-62).

In Swarthout v. Cooke,

27 the Court did unequivocally determine that the Constitution does not
28 impose on the states a requirement that decisions to deny parole be
16

1 supported by a particular quantum of evidence, independent of any
2 requirement imposed by state law.
3
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5
6

Roberts v. Hartley, 640 F.3d at

1046; Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011).

A

state’s misapplication of its own laws does not provide a basis for
granting a federal writ of habeas corpus.

Roberts v. Hartley, 640

7 F.3d at 1046.

8

Although Petitioner asserts that his claims are based on a

9 right to substantive due process, it is recognized that there is no
10
11
12
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substantive due process right created by California’s parole scheme;
if the state affords the procedural protections required by
Greenholtz and Swarthout v. Cooke, the Constitution requires no

14 more.
15

Roberts v. Hartley, 640 F.3d at 1046.

In summary, to the extent that Petitioner raises a procedural

16 due process claim, the claim should be dismissed. Petitioner’s
17
claim of a substantive due process violation should also be
18
dismissed. Because it does not appear that Petitioner could allege
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20 a tenable due process claim of either type if leave to amend were
21 granted, the claims will be dismissed without leave to amend.
22

IV.

23

Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

24 appealability, an appeal may not be taken to the Court of Appeals
25 from the final order in a habeas proceeding in which the detention
26 complained of arises out of process issued by a state court

28

27 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
28 (2003).

A district court must issue or deny a certificate of
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1 appealability when it enters a final order adverse to the applicant.
2 Rule 11(a) of the Rules Governing Section 2254 Cases.
3

A certificate of appealability may issue only if the applicant

4 makes a substantial showing of the denial of a constitutional right.
5 ' 2253(c)(2).

Under this standard, a petitioner must show that

6 reasonable jurists could debate whether the petition should have
7 been resolved in a different manner or that the issues presented

8 were adequate to deserve encouragement to proceed further.

Miller-

9 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
10 473, 484 (2000)).

A certificate should issue if the petitioner

11 shows that jurists of reason would find it debatable whether the
12 petition states a valid claim of the denial of a constitutional
13 right and, with respect to a procedural denial, that jurists of
14 reason would find it debatable whether the district court was
15 correct in any procedural ruling.

Slack v. McDaniel, 529 U.S. at

16 483-84.
17

In determining this issue, a court conducts an overview of the

18 claims in the habeas petition, generally assesses their merits, and
19 determines whether the resolution was wrong or debatable among
20 jurists of reason.

Id.

It is necessary for an applicant to show

21 more than an absence of frivolity or the existence of mere good
22 faith; however, it is not necessary for an applicant to show that

23 the appeal will succeed.
24

Miller-El v. Cockrell, 537 U.S. at 338.

Here, it does not appear that reasonable jurists could debate

25 whether the petition should have been resolved in a different
26 manner.

Petitioner has not made a substantial showing of the denial

27 of a constitutional right.
28
18

Accordingly, the Court will decline to issue a certificate of

1

2 appealability.
3

V.

Disposition

4

In accordance with the foregoing analysis, it is ORDERED that:

5

1) Petitioner’s petition for writ of habeas corpus is DISMISSED

6 without leave to amend; and
2) The Court DECLINES to issue a certificate of appealability;

7

8 and
9

3) The Clerk is DIRECTED to close the action because this

10 dismissal terminates it in its entirety.
11
12 IT IS SO ORDERED.
13
14

Dated:

/s/ Barbara

March 11, 2014

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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