Avila v. Martel
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/8/11 RECOMMENDING that 1 Petition for Writ of Habeas Corpus be denied; and 9 MOTION to DISMISS be denied as moot. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 21 days.(Dillon, 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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DAVID AVILA,
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Petitioner,
vs.
MICHAEL MARTEL,
Respondent.
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No. 2:10-cv-2375 FCD KJN P
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 the 2008 decision of
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the California Board of Parole Hearings (“Board”) denying petitioner parole. This matter is
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before the court on respondent’s motion to dismiss, based on the contention that petitioner’s
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claims are barred by the statute of limitations. However, subsequent to the briefing in this case,
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the United States Supreme Court decided Swarthout v. Cooke, 131 S. Ct. 859 (Jan. 24. 2011),
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which is dispositive of petitioner’s claims on the merits. On this basis, the court recommends
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that the petition be denied.
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Petitioner contends that his federal constitutional right to due process was violated
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by the Board’s finding that petitioner’s release would pose a threat to public safety. Petitioner
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claims that the Board’s decision was not supported by sufficient evidence of petitioner’s current
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dangerousness, that the Board improperly relied on static factors to reach its decision, and that
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petitioner’s commitment offense was “not particularly egregious.”
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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 Department of Corrections v.
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Thompson, 490 U.S. 454, 459-60 (1989).
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A protected liberty interest may arise under the Due Process Clause of the United
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States Constitution either “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 and Correctional Complex, 442 U.S.
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1, 7 (1979) (there is “no constitutional or inherent right of a convicted person to be conditionally
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released before the expiration of a valid sentence”). However, “a state’s statutory scheme, if it
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uses mandatory language, ‘creates a presumption that parole release will be granted’ when or
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unless certain designated findings are made, and thereby gives rise to a constitutional liberty
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interest.” Greenholtz, 442 U.S. at 12; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78
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(1987) (a state’s use of mandatory language (“shall”) creates a presumption that parole release
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will be 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 v. Cooke, 131 S. Ct. at 861-62. In California, a prisoner
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is entitled to release on parole unless there is “some evidence” of his or her current
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dangerousness. In re Lawrence (2008) 44 Cal.4th 1181, 1205-06, 1210; In re Rosenkrantz (2009)
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29 Cal.4th 616, 651-53. However, in Swarthout, the 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 862. 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, or relied upon, at a parole proceeding. Id. at 862-63. Rather, the protection
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afforded by the federal Due Process Clause to California parole decisions consists solely of the
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“minimum” procedural requirements set forth in Greenholtz, specifically “an opportunity to be
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heard and . . . a statement of the reasons why parole was denied.” Id. at 862. Thus, under
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Swarthout, petitioner’s claims, challenging the factors and sufficiency of the evidence underlying
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the Board’s parole decision, are not cognizable.
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The Supreme Court has stated that “the beginning and the end of the federal
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habeas courts’ inquiry” is whether petitioner received “the minimum procedures adequate for
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due-process protection.” Swarthout, 131 S. Ct. at 862. Respondent has submitted a copy of the
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transcript of petitioner’s January 16, 2008, parole hearing. (Dkt. No. 9, Exh. 1.) The transcript
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reflects that petitioner was present, with counsel, at the hearing, that petitioner was afforded
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access to his record in advance, that petitioner participated in the hearing, and that he was
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provided with the reasons for the Board’s decision to deny parole. According to the United
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States Supreme Court, the federal Due Process Clause requires no more.
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Accordingly, 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. Respondent’s motion to dismiss be denied as moot.
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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: April 8, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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