deRutte v. Dickinson

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/12/11 RECOMMENDING that the 1 Petition for Writ of Habeas Corpus be denied. Referred to Judge Kimberly J. Mueller. Objections due within 21 days. (Manzer, C)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SEAN DERUTTE, 11 Petitioner, 12 No. CIV-S-10-0030 KJM CKD P vs. 13 KATHLEEN DICKINSON, 14 Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner is a California prisoner proceeding with counsel with a petition for writ 17 of habeas corpus under 28 U.S.C. § 2254. He is serving a sentence of fifteen-years-to-life 18 imprisonment for second degree murder. Petitioner was convicted in Marin County in 1986 19 following a plea of guilty. In this action petitioner raises two claims, both of which concern the 20 fact that he was denied parole in 2008. 21 I. Standard For § 2254 Relief 22 An application for a writ of habeas corpus by a person in custody under a 23 judgment of a state court can be granted only for violations of the Constitution or laws of the 24 United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any 25 claim decided on the merits in state court proceedings unless the state court’s adjudication of the 26 claim: 1 1 (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 2 3 (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. 4 5 28 U.S.C. § 2254(d) (referenced herein as “§ 2254(d)” or “AEDPA”).1 It is the habeas 6 petitioner’s burden to show he is not precluded from obtaining relief by § 2254(d). See 7 Woodford v. Visciotti, 537 U.S. 19, 25 (2002). 8 9 The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different. As the Supreme Court has explained: 10 A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the “unreasonable application” clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court’s application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one. 11 12 13 14 15 16 17 Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the 18 law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply 19 fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 20 (2002). 21 The court will look to the last reasoned state court decision in determining 22 whether the law applied to a particular claim by the state courts was contrary to the law set forth 23 in the cases of the United States Supreme Court or whether an unreasonable application of such 24 law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 25 1 26 Title 28 U.S.C. § 2254(d) establishes a precondition to federal habeas relief, not grounds for entitlement to habeas relief. Fry v. Pliler, 127 S. Ct. 2321, 2326-27 (2007). 2 1 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial 2 of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court 3 must perform an independent review of the record to ascertain whether the state court decision 4 was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other 5 words, the court assumes the state court applied the correct law, and analyzes whether the 6 decision of the state court was based on an objectively unreasonable application of that law. 7 It is appropriate to look to lower federal court decisions to determine what law has 8 been “clearly established” by the Supreme Court and the reasonableness of a particular 9 application of that law. “Clearly established” federal law is that determined by the Supreme 10 Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is 11 appropriate to look to lower federal court decisions as persuasive authority in determining what 12 law has been “clearly established” and the reasonableness of a particular application of that law. 13 Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th 14 Cir. 2003), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 15 365 F.3d at 782-83 (noting that reliance on Ninth Circuit or other authority outside bounds of 16 Supreme Court precedent is misplaced). 17 II. Sixth Amendment 18 Petitioner asserts his Sixth Amendment right to a trial by jury and to confront his 19 accusers was violated at his 2008 parole hearing when the parole board concluded petitioner was 20 guilty of certain sex offenses and when the panel received unsworn testimony in which it was 21 alleged, among other things, that petitioner is a rapist. However, the first line of the Sixth 22 Amendment indicates that it is applicable only with respect to “criminal prosecutions” and 23 petitioner fails to point to anything suggesting it should be applicable in a state parole suitability 24 hearing.2 As indicated below, federal protections applicable at state parole suitability hearings 25 2 26 Petitioner suggests that Morrissey v. Brewer, 408 U.S. 471 (1972) supports the notion that the Sixth Amendment applies in parole suitability hearings. This is somewhat disingenuous 3 1 generally arise, if at all, under the Due Process Clause of the Fourteenth Amendment. For these 2 reasons, petitioner’s first claim must be rejected. 3 III. Fourteenth Amendment 4 Petitioner asserts he was denied due process in violation of the Fourteenth 5 Amendment by the decision to deny him parole in 2008 because the decision to deny him parole 6 is not supported by any evidence indicating that petitioner poses a threat of danger to the public 7 upon release. The Due Process Clause of the Fourteenth Amendment prohibits state action that 8 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 9 due process violation must first demonstrate that he was deprived of a liberty or property interest 10 protected by the Due Process Clause and then show that the procedures attendant upon the 11 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 12 490 U.S. 454, 459-60 (1989). 13 A protected liberty interest may arise from either the Due Process Clause of the 14 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 15 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 16 (2005) (citations omitted). The United States Constitution does not, of its own force, create a 17 protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 18 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no 19 constitutional or inherent right of a convicted person to be conditionally released before the 20 expiration of a valid sentence.”). However, “a state’s statutory scheme, if it uses mandatory 21 language, ‘creates a presumption that parole release will be granted’ when or unless certain 22 designated findings are made, and thereby gives rise to a constitutional liberty interest.” 23 Greenholtz, 442 U.S. at 12. 24 25 26 as Morrissey concerns parole revocation hearings, not parole suitability hearings, and the Supreme Court made clear that protections applicable at such hearings arise from the Due Process Clause of the Fourteenth Amendment, not the Sixth Amendment. Id. at 480-81. 4 1 California’s parole statutes give rise to a liberty interest in parole protected by the 2 federal due process clause. Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (per curiam). In 3 California, a prisoner is entitled to release on parole unless there is “some evidence” of his or her 4 current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re 5 Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme 6 Court held that “[n]o opinion of [theirs] supports converting California’s ‘some evidence’ rule 7 into a substantive federal requirement.” Swarthout, 131 S. Ct. at 862. In other words, the Court 8 specifically rejected the notion that there can be a valid claim under the Fourteenth Amendment 9 for insufficiency of evidence presented at a parole proceeding. Id. at 863. Rather, the protection 10 afforded by the federal due process clause to California parole decisions consists solely of the 11 “minimal” procedural requirements set forth in Greenholtz, specifically “an opportunity to be 12 heard and . . . a statement of the reasons why parole was denied.” Id. at 862. 13 Here, the record reflects that petitioner was present at his 2008 parole hearing, he 14 was given an opportunity to be heard throughout his hearing, and was provided with the reasons 15 for the decision to deny parole. Answer, Ex. 5 at 115-256. According to the United States 16 Supreme Court, the Due Process Clause requires no more. For these reasons, petitioner’s denial 17 of federal due process claim must be rejected. 18 19 In accordance with the above, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 20 These findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 22 one days after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 25 may address whether a certificate of appealability should issue in the event he files an appeal of 26 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 5 1 court must issue or deny a certificate of appealability when it enters a final order adverse to the 2 applicant). Any reply to the objections shall be served and filed within fourteen days after 3 service of the objections. The parties are advised that failure to file objections within the 4 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 5 F.2d 1153 (9th Cir. 1991). 6 Dated: September 12, 2011 7 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 1 deru0030.157 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6

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