Carey v. Haviland
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/15/11 RECOMMENDING that petitioner's 1 application for writ of habeas corpus be denied. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RICHARD H. CAREY,
Petitioner,
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vs.
JOHN HAVILAND,
Respondent.
FINDINGS AND RECOMMENDATIONS
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No. CIV 10-1878 KJM EFB P
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28
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U.S.C. § 2254. He challenges the California Board of Parole Hearings’ 2008 finding that he was
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unsuitable for parole, claiming that the Board’s decision violated his federal right to due process.
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Dckt. No. 1 at 6-9, 14.
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In California, a prisoner is entitled to release unless there is “some evidence” of his or her
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current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re
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Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). But the United States Supreme Court held that
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federal habeas review of a parole denial is limited to the narrow question of whether a petitioner
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has received “fair procedures.” Swarthout v. Cooke, 526 U.S. __ (2011), No. 10-333, 2011 WL
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197627, at *2 (Jan. 24, 2011). In other words, a federal court may only review whether a
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petitioner has received a meaningful opportunity to be heard and a statement of reasons why
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parole was denied. Id. at **2-3 (federal due process satisfied where petitioners were “allowed to
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speak at their parole hearings and to contest the evidence against them, were afforded access to
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their records in advance, and were notified as to the reasons why parole was denied”). Thus, this
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court may not review whether the Board correctly applied California’s “some evidence”
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standard. Id. at *2.
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Petitioner does not allege that he was not afforded constitutionally adequate process as
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defined in Swarthout--that is, that he was denied a meaningful opportunity to be heard or a
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statement of reasons why the Board denied him parole. Accordingly, it is hereby
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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: December 15, 2011.
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