Farrell v. Barnes
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 04/12/11 recommending that the petition be denied. Referred to Judge Morrison C. England Jr. 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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MITCHELL CLYDE FARRELL,
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Petitioner,
Respondent.
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No. CIV S-10-0378 MCE GGH P
FINDINGS & RECOMMENDATIONS
vs.
R.E. BARNS
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2008 decision by the California
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Board of Parole Hearings (BPH) finding him unsuitable for parole.
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On January 28, 2011 the undersigned ordered both parties to provide briefing
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regarding the recent United States Supreme Court decision that found that the Ninth Circuit erred
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in commanding a federal review of the state’s application of state law in applying the “some
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evidence” standard in the parole eligibility habeas context. Swarthout v. Cooke, 502 U.S. ___,
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131 S. Ct. 859, 861 (2011).1
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The earlier citation in the prior order was to Swarthout v. Cooke, 502 U.S. ___, ___ S.
Ct. ___, 2011 WL 197627 *2 (Jan. 24, 2011)
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The parties have timely filed briefing, yet for the reasons set forth in the prior
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order, and notwithstanding petitioner’s argument, there is no federal due process requirement for
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a “some evidence” review, thus the federal courts are precluded from a review of the state court’s
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application of its “some evidence” standard.2 A review of the petition in this case, and the
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accompanying memorandum of points and authorities, demonstrates that it is entirely based on
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alleged violation of California’s “some evidence” requirement. Therefore, the petition should be
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denied.
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Accordingly, IT IS HEREBY RECOMMENDED that the petition be denied.
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If petitioner files objections, he shall also address if a certificate of appealability
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should issue and, if so, as to which issues. A certificate of appealability may issue under 28
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U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a
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constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate
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which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3).
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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.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. The parties are
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The court notes some perversity in the result here. Loss of good-time credits, even for a
day, pursuant to decision at a prison disciplinary hearing, must be supported by “some evidence.”
Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768 (1985). Assignment to administrative
segregation requires the same “some evidence” before such an assignment can be justified.
Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.2003). However, a denial of parole eligibility after
sometimes decades in prison, and where another opportunity for parole can be delayed for as
long as fifteen more years, requires no such protection from the federal due process standpoint.
Nevertheless, such is the state of the law.
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: April 12, 2011
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/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
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GGH: AB
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farr0378.parole.dis
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