Holliday v. Swarthout

Filing 8

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 6/13/2011 ORDERING that ptnr's 6 motion to proceed IFP is GRANTED; and the clerk to assign a district judge to this case; and RECOMMENDING that ptnr's 1 petition for writ of habeas corpus be dismissed w/out leave to amend; and the court decline to issue a COA. Assigned and Referred to Judge Morrison C. England, Jr.; Objections due w/in 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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CURTIS HOLLIDAY,

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Petitioner,

No. CIV 10-cv-2747-JFM (HC)

vs.
GARY SWARTHOUT, Warden,

ORDER AND

Respondent.

FINDINGS & RECOMMENDATIONS
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
Examination of the affidavit reveals petitioner is unable to afford the costs of this
action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to

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dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to

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it that the petitioner is not entitled to relief in the district court ....“ Rule 4 of the Rules Governing

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Section 2254 Cases. The court must summarily dismiss a petition “[i]f it plainly appears from

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the petition and any attached exhibits that the petitioner is not entitled to relief in the district

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court....” Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also

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Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition
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(1) specify all grounds of relief available to the Petitioner; (2) state the facts supporting each

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ground; and (3) state the relief requested. Notice pleading is not sufficient; rather, the petition

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must state facts that point to a real possibility of constitutional error. Rule 4, Advisory

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Committee Notes, 1976 Adoption; O'Bremski, 915 F.2d at 420. Allegations in a petition that are

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vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 F.2d

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at 491.

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Further, the Advisory Committee Notes to Rule 8 indicate that the court may

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dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory

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Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039 (9th Cir.

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2001).

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Federal habeas corpus relief is not available for any claim decided on the merits in
state court proceedings unless the state court's adjudication of the claim:

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(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

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(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.

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28 U.S.C. § 2254(d).

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Under section 2254(d)(1), a state court decision is “contrary to” clearly

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established United States Supreme Court precedents if it applies a rule that contradicts the

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governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially

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indistinguishable from a decision of the Supreme Court and nevertheless arrives at different

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result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406

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(2000)).

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Under the “unreasonable application” clause of section 2254(d)(1), a federal
habeas court may grant the writ if the state court identifies the correct governing legal principle
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from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the

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prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ

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simply because that court concludes in its independent judgment that the relevant state-court

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decision applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75

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(2003) (it is “not enough that a federal habeas court, in its independent review of the legal

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question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).

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The Due Process Clause of the Fourteenth Amendment prohibits state action that
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). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987).

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The United States Constitution does not, of its own force, create a protected liberty interest in a

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parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981);

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Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or

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inherent right of a convicted person to be conditionally released before the expiration of a valid

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sentence.”). However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a

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presumption that parole release will be granted’ when or unless certain designated findings are

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made, and thereby gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12. See

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also Allen, 482 U.S. at 376-78.

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/////
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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, 562 U.S. ___ (2011), No. 10-333, 2011 WL

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197627, at *2 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless

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there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181,

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1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in

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Swarthout the United States Supreme Court held that “[n]o opinion of [theirs] supports

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converting California’s ‘some evidence’ rule into a substantive federal requirement.” Swarthout,

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2011 WL 197627, at *3. Rather, the protection afforded by the federal due process clause to

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California parole decisions consists solely of the “minimal” procedural requirements set forth in

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Greenholtz, specifically “an opportunity to be heard and . . . a statement of the reasons why

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parole was denied.” Id. at *2-3.

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In the petition pending before this court, petitioner appeared before the Board of

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Parole Hearings (“the Board”) for a parole consideration hearing on November 6, 2007.

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See Doc. No. 1 at 42. Petitioner appeared at and participated in the hearing. See id. Following

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deliberations held at the conclusion of the hearing, the Board announced their decision to deny

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petitioner parole and the reasons for that decision. Id. at 186.

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Petitioner challenges the Board’s decision on three grounds: (1) there was no

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evidence to support the conclusion that petitioner posed an unreasonable risk to public safety; (2)

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the Board’s factual findings are unsupported by the record; and (3) the Board’s reliance on

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disciplinary infractions to deny parole is unwarranted. According to the United States Supreme

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Court, the federal due process clause requires only that petitioner be present at and participate in

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the parole hearing, and that the Board announce their decision with supporting reasons. No more

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is required of the Board. Accordingly, petitioner’s application for a writ of habeas corpus should

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be dismissed without leave to amend.

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Unless a circuit justice or judge issues a certificate of appealability, an appeal may
not be taken to the Court of Appeals from the final order in a habeas proceeding in which the
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detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A);

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Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if

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the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2).

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Under this standard, a petitioner must show that reasonable jurists could debate whether the

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petition should have been resolved in a different manner or that the issues presented were

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adequate to deserve encouragement to proceed further. Miller–El v. Cockrell, 537 U.S. at 336

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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the

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petitioner shows that jurists of reason would find it debatable whether the petition states a valid

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claim of the denial of a constitutional right and that jurists of reason would find it debatable

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whether the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473,

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483–84 (2000). In determining this issue, a court conducts an overview of the claims in the

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habeas petition, generally assesses their merits, and determines whether the resolution was

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debatable among jurists of reason or wrong. Id. It is necessary for an applicant to show more

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than an absence of frivolity or the existence of mere good faith; however, it is not necessary for

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an applicant to show that the appeal will succeed. Miller–El v. Cockrell, 537 U .S. at 338.

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A district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.

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Here, it does not appear that reasonable jurists could debate whether the petition

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should have been resolved in a different manner. Petitioner has not made a substantial showing

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of the denial of a constitutional right. Accordingly, the court should decline to issue a certificate

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of appealability.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a district
judge to this case;

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IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s petition for a writ of habeas corpus be dismissed without leave to

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amend; and
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2. The court decline to issue a certificate of appealability.

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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 response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 13, 2011.

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/014;holl2747.114

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