Capps v. Salinas

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K Delaney on 08/04/11 recommending that petitioner's application for writ of habeas corpus be denied; and this case be closed. Referred to Judge Lawrence K. Karlton. 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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WILLIAM R. CAPPS,

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Petitioner,

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vs.

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No. CIV-S-10-0014 LKK CKD P

S.M. SALINAS,

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Respondent.

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FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner proceeding without counsel with an application for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 decision by the

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California Board of Parole Hearings (BPH) denying him parole.

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The Due Process Clause of the Fourteenth Amendment prohibits state action that

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deprives a person of life, liberty, or property without due process of law. A litigant alleging a

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due process violation must first demonstrate that he was deprived of a liberty or property interest

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protected by the Due Process Clause and then show that the procedures attendant upon the

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deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson,

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490 U.S. 454, 459-60 (1989).

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A protected liberty interest may arise from either the Due Process Clause of the

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United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an

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expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221
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(2005) (citations omitted). The United States Constitution does not, of its own force, create a

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protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454

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U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no

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constitutional or inherent right of a convicted person to be conditionally released before the

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expiration of a valid sentence.”). However, “a state’s statutory scheme, if it uses mandatory

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language, ‘creates a presumption that parole release will be granted’ when or unless certain

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designated findings are made, and thereby gives rise to a constitutional liberty interest.”

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Greenholtz, 442 U.S. at 12; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a

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state’s use of mandatory language (“shall”) creates a presumption that parole release will be

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granted when the designated findings are made.).
California’s parole statutes give rise to a liberty interest in parole protected by the

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Due Process Clause of the Fourteenth Amendment. Swarthout v. Cooke, 131 S. Ct. 859, 861

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(2011) (per curiam). In California, a prisoner is entitled to release on parole unless there is

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“some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06,

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1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in Swarthout the

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United States Supreme Court held that “[n]o opinion of [theirs] supports converting California’s

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‘some evidence’ rule into a substantive federal requirement.” Swarthout, 131 S. Ct. at 862. In

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other words, the Court specifically rejected the notion that there can be a valid claim under the

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Fourteenth Amendment for insufficiency of evidence presented at a parole proceeding. Id. at

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863. Rather, the protection afforded by the federal due process clause to California parole

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decisions consists solely of the “minimal” procedural requirements set forth in Greenholtz,

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specifically “an opportunity to be heard and . . . a statement of the reasons why parole was

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denied.” Id. at 862.

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The record reflects that petitioner was present at his 2008 parole hearing, Pet., Ex.

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A, he was given an opportunity to be heard throughout his hearing, id. at 3-58, and was provided

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with the reasons for the decision to deny parole, id. at 58-64. All of petitioner’s claims are based
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upon the premise that this court can engage in a review of the evidence presented in favor of and

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against petitioner being released on parole and then determine if the evidence supporting denial

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is sufficient. Because the court cannot engage in that sort of review, petitioner’s application for

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writ of habeas corpus must be denied.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s application for writ of habeas corpus be denied; and

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2. This case be closed.

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These findings and recommendations are submitted to the United States District

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

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days 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). In

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his objections petitioner may address whether a certificate of appealability should issue in the

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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

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enters a final order adverse to the applicant).

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DATED: August 4, 2011

/s/ Carolyn K. Delaney

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United States Magistrate Judge

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