Cerny v. Dickinson et al

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/11/2011 recommending that petitioner's 1 application for writ of habeas be denied; referred to Judge Garland E. Burrell. Objections due within twenty-one days after being served with these findings and recommendations. (Duong, D) Modified on 8/12/2011 (Duong, D).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRUCE ARMAND CERNY,

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Petitioner,

No. 2:10-cv-2190 GEB KJN P

vs.
K.L. DICKINSON, et al.,
Respondents.

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. By order filed June 29, 2011, petitioner was

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directed to inform the court, within thirty days, whether he wished to pursue the instant petition

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for writ of habeas corpus, or requested withdrawal of this action without prejudice. (Dkt. No.

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18.) Specifically, petitioner was provided an opportunity to advise the court whether he

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challenged issues other than the “some evidence” claim addressed by Swarthout v. Cooke, 131 S.

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Ct. 859, 861 (2011). (Dkt. No. 18 at 3.) Thirty days have elapsed and petitioner failed to

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respond to the court’s June 29, 2011 order.

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In the grounds for relief section of the instant petition, petitioner refers the court to

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petitioner’s “Brief in Support of Petition for Writ of Habeas Corpus.” (Dkt. No. 1 at 6, 7.) In

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petitioner’s “Brief,” petitioner claims that his federal constitutional right to due process was
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violated by the 2007 and 2008 decisions of the California Board of Parole Hearings (hereafter

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“the Board”) to deny him a parole date, specifically arguing that the parole denial was “contrary

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to, and [an] objectively unreasonable application of, the U.S. Supreme Court some evidence

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standard.” (Dkt No. 3 at 3, 8, 9.)

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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,

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221 (2005) (citations omitted). The United States Constitution does not, of its own force, create

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a 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.).

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California’s parole statutes give rise to a liberty interest in parole protected by the

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federal due process clause. Swarthout, 131 S. Ct. at 861. In California, a prisoner is entitled to

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release on parole unless there is “some evidence” of his or her current dangerousness. In re
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Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53

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(2002). However, in Swarthout the United States Supreme Court held that “[n]o opinion of

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[theirs] supports converting California’s ‘some evidence’ rule into a substantive federal

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requirement.” Swarthout, 131 S. Ct. at 861. In other words, the Court specifically rejected the

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notion that there can be a valid claim under the Fourteenth Amendment for insufficiency of

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evidence presented at a parole proceeding. Id. Rather, the protection afforded by the federal due

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process clause to California parole decisions consists solely of the “minimal” procedural

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requirements set forth in Greenholtz, specifically “an opportunity to be heard and . . . a statement

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of the reasons why parole was denied.” Swarthout, at 861-62.

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Here, the record reflects that petitioner was present at the 2007 parole hearing,

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that he participated in the hearing, and that he was provided with the reasons for the Board’s

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decision to deny parole. (Dkt. No. 1-12 at 1-92.) The record reflects that petitioner was present

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at the 2008 parole hearing, that he participated in the hearing, and that he was provided with the

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reasons for the Board’s decision to deny parole. (Dkt. No. 1-13 at 1-69.) According to the

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United States Supreme Court, the federal due process clause requires no more. Therefore,

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petitioner’s application for a writ of habeas corpus should be denied.

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IT IS HEREBY RECOMMENDED that petitioner’s application for writ of habeas
corpus be denied.

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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 twenty-

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one 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.” If petitioner files

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objections, he shall also address whether a certificate of appealability should issue and, if so, why

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and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if

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the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

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service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: August 11, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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cern2190.157

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