Ramirez v. Martel
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 06/09/11 recommending that respondent's 03/07/11 motion to dismiss be granted; This action be dismissed; and the district court decline to issue a certificate of appealability. MOTION to DISMISS 12 referred to Judge John A. Mendez. 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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RICARDO GIL RAMIREZ,
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Petitioner,
No. 2:10-cv-3200 JAM JFM (HC)
Respondent.
FINDINGS AND RECOMMENDATIONS
vs.
M. MARTEL,
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Petitioner is a state prisoner proceeding pro se with an application for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that his federal constitutional
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right to due process was violated by a 2009 decision of the California Board of Parole Hearings
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to deny him a parole date. This matter is before the court on respondent’s motion to dismiss this
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action for failure to state a cognizable federal claim. Petitioner has not filed an opposition to the
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motion.
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A motion for summary dismissal pursuant to Rule 4 of the Rules Governing
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Habeas Corpus Cases Under Section 2254 (“Habeas Rules”) is an appropriate motion in habeas
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proceedings. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); White v. Lewis, 874 F.2d
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599, 602-03 (9th Cir. 1989). Rule 4 of the Habeas Rules authorizes a judge to summarily dismiss
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a habeas petition “[i]f it plainly appears from the petition and any exhibits annexed to it that the
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petitioner is not entitled to relief in the district court.” Rule 4 also authorizes motions to dismiss
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on procedural grounds where there exists a procedural reason for dismissing a habeas petition
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that may obviate the need for a full answer on the merits. See White v. Lewis, 874 F.2d at 602.
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In the instant case, petitioner challenges a 2009 decision of the California Board
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of Parole Hearings to deny him a parole date. Petitioner claims the decision violated his right to
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due process because it was arbitrary and unsupported by any evidence that he is currently
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dangerous.
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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. 859, 861 (2011). In California, a
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prisoner is entitled to release on parole unless there is “some evidence” of his or her current
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dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29
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Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that
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“[n]o opinion of [theirs] supports converting California’s ‘some evidence’ rule into a substantive
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federal requirement.” Swarthout, 131 S. Ct. at 862. Rather, the protection afforded by the
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federal due process clause to California parole decisions consists solely of the “minimal”
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procedural requirements set forth in Greenholtz, specifically “an opportunity to be heard and . . .
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a statement of the reasons why parole was denied.” Id.
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Here, the record reflects that petitioner was present at the 2009 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. According to the United States Supreme Court, the federal due process
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clause requires no more. For that reason, petitioner’s claim that the decision was arbitrary and
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unsupported by evidence of current dangerousness is not cognizable in this federal habeas corpus
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proceeding. Respondent’s motion to dismiss should therefore be granted.
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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United
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States District Courts, “[t]he district court must issue or a deny a certificate of appealability when
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it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of
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appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial
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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either
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issue a certificate of appealability indicating which issues satisfy the required showing or must
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state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons
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set forth in these findings and recommendations, petitioner has not made a substantial showing of
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the denial of a constitutional right. Accordingly, no certificate of appealability should issue.
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
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1. Respondent’s March 7, 2011 motion to dismiss be granted;
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2. This action be dismissed; and
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3. The district 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 9, 2011.
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