Rennels v. Sisto

Filing 35

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/22/12 recommending that petitioner's application for a writ of habeas corpus be denied. MOTION to DISMISS 28 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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G. W. RENNELS,
Petitioner,

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No. CIV 07-2581 WBS EFB P

vs.

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D.K. SISTO, Warden, et al.,

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Respondents.

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FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28

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U.S.C. § 2254. Respondents move to dismiss all of petitioner’s remaining claims. For the

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following reasons, the motion to dismiss must be granted.

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This action proceeds on petitioner’s March 22, 2010 amended petition, which raised five

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claims: 1) the Board’s finding of unsuitability violated the holding of Cunningham v. California,

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549 U.S. 270 (2007); 2) the Board’s decision violated due process because it was not supported

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by some evidence of petitioner’s current dangerousness; 3) the Board violated section 3041(a) of

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the California Penal Code, which requires “that parole should be the rule and not the exception”;

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4) the Board’s standards and criteria violate the separation of powers doctrine; and 5) the

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Board’s “standards and criteria are void for vagueness.” Dckt. No. 20. On February 11, 2011,

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the undersigned recommended that respondents’ motion to dismiss, which argued that the first

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two claims be dismissed, be granted. Dckt. No. 26. On March 31, 2011, the assigned district
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judge adopted the findings and recommendations and ordered respondents to file a response to

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the remaining three claims. Dckt. No. 27. Respondent filed this motion to dismiss, which

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petitioner opposes.

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Petitioner’s remaining claims are as follows. First, he argues that the Board violated

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applicable sections of the California Penal Code, which require “that parole should be the rule

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and not the exception.” Petitioner argues that, as the vast majority of inmates are denied parole

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on the grounds that their offense was “exceptional,” the board’s “detailed standards” are invalid.

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Second, petitioner argues that the Board’s standards and criteria violate California’s separation

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of powers doctrine.1 Finally, he contends that the Board’s “standards and criteria are void for

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vagueness” and violate his due process rights. Dckt. No. 20 at 23-29.

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None of these claims are cognizable on federal habeas review. The validity of the

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Board’s standards and criteria, and whether it follows its own standards and criteria, are

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questions of state law and may not be reviewed by this court. The United States Supreme Court

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has held that federal habeas review of a parole denial is limited to the narrow question of

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whether a petitioner has received “fair procedures.” Swarthout v. Cooke, 526 U.S. __ (2011),

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No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011). In other words, a federal court may only

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review whether a petitioner has received a meaningful opportunity to be heard and a statement of

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reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners

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were “allowed to speak at their parole hearings and to contest the evidence against them, were

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afforded access to their records in advance, and were notified as to the reasons why parole was

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denied”).

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The federal doctrine of separation of powers does not extend to the states under the
Fourteenth Amendment, see Hughes v. Superior Court, 339 U.S. 460, 466-67 (1950).
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Accordingly, it is hereby RECOMMENDED that petitioner’s application for a writ of
habeas corpus be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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In any objections he elects to file, petitioner may address whether a certificate of

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appealability should issue in the event he files an appeal of the judgment in this case. See Rule

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11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a

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certificate of appealability when it enters a final order adverse to the applicant); Hayward v.

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Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of

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appealability to review the denial of a habeas petition challenging an administrative decision

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such as denial of parole by the parole board).

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DATED: February 22, 2012.

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