Ash v. Swarthout

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/28/11 RECOMMENDING that 13 MOTION to DISMISS filed by Gary Swarthout be granted and that the case be closed. Referred to Judge John A. Mendez; Objections to F&R due 21 days after being served with these findings and recommendations. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEITH ASH,

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Petitioner,

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No. CIV S-10-3414 JAM CKD P

vs.
GARY SWARTHOUT,

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Respondent.

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FINDINGS & RECOMMENDATIONS
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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner raises a due process challenge to the decision of

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the California Board of Parole Hearings (hereinafter “Board”) to deny him parole at his parole

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consideration hearing held on December 4, 2008. Respondent has filed a motion to dismiss,

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arguing that petitioner has no claim for federal habeas relief after the Supreme Court’s decision

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in Swarthout v. Cooke, 562 U.S. ___ , 131 S. Ct. 859 (2011). The motion has been fully briefed.

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Upon careful consideration of the record and the applicable law, the undersigned will

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recommend that petitioner’s application for habeas corpus relief be dismissed.

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PROCEDURAL BACKGROUND

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ANALYSIS

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I. Standards of Review Applicable to Habeas Corpus Claims

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A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of

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some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860,

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861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v.

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Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the

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interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991);

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Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas

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corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377

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(1972).

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This action is governed by the Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d

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1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting

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habeas corpus relief:

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An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the
claim (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
(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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See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362

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(2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court’s decision

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does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review

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of a habeas petitioner’s claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See
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also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we

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may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error,

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we must decide the habeas petition by considering de novo the constitutional issues raised.”).

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The court looks to the last reasoned state court decision as the basis for the state

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court judgment.1 Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). See also Barker v.

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Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (“When more than one state court has adjudicated

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a claim, we analyze the last reasoned decision”). If the last reasoned state court decision adopts

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or substantially incorporates the reasoning from a previous state court decision, this court may

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consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque,

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475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the

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merits but provides no reasoning to support its conclusion, a federal habeas court independently

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reviews the record to determine whether habeas corpus relief is available under § 2254(d).

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Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167

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(9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner’s

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claim the AEDPA’s deferential standard does not apply and a federal habeas court must review

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the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

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II. Scope of Review Applicable to Due Process Challenges to the Denial of Parole

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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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Here, the last reasoned state court decision issued from the Superior Court of Los
Angeles County. See Petition, Ex. D.
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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). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States

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Constitution does not, of its own force, create a protected liberty interest in a parole date, even

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one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of

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Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or inherent right of a convicted

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person to be conditionally released before the expiration of a valid sentence.”). However, a

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state’s statutory scheme, if it uses mandatory language, “creates a presumption that parole release

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will be granted” when or unless certain designated findings are made, and thereby gives rise to a

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constitutional liberty interest. Greenholtz, 442 U.S. at 12. See also Allen, 482 U.S. at 376-78.

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California’s parole scheme gives rise to a liberty interest in parole protected by the

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federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th

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Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002); see also Swarthout,131 S.

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Ct. at 861-62 (finding the Ninth Circuit’s holding in this regard to be a reasonable application of

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Supreme Court authority); Pearson v. Muntz, ___F.3d___, 2011 WL 1238007, at *4 (9th Cir.

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Apr. 5, 2011) (“[Swarthout v.] Cooke did not disturb our precedent that California law creates a

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liberty interest in parole.”) In California, a prisoner is entitled to release on parole unless there is

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“some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06,

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

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In Swarthout, the Supreme Court reviewed two cases in which California

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prisoners were denied parole – in one case by the Board, and in the other by the Governor after

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the Board had granted parole. Swarthout, 131 S. Ct. at 860-61. The Supreme Court noted that

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when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment

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requires fair procedures, “and federal courts will review the application of those constitutionally

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required procedures.” Id. at 862. The Court concluded that in the parole context, however, “the
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procedures required are minimal” and that the “Constitution does not require more” than “an

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opportunity to be heard” and being “provided a statement of the reasons why parole was denied.”

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Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit

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decisions that went beyond these minimal procedural requirements and “reviewed the state

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courts’ decisions on the merits and concluded that they had unreasonably determined the facts in

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light of the evidence.” Swarthout, 131 S. Ct. at 862. In particular, the Supreme Court rejected

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the application of the “some evidence” standard to parole decisions by the California courts as a

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component of the federal due process standard. Id. at 862-63. See also Pearson, 2011 WL

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1238007 at *4.

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III. Petitioner’s Claims

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A. Due Process

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Petitioner seeks federal habeas relief on the grounds that the Board’s 2008

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decision to deny him parole, the findings upon which that denial was based, and the Los Angeles

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County Superior Court’s decision not to reverse the Board were not supported by “some

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evidence,” as required under California law. See Pet. at 5. However, after the Supreme Court’s

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decision in Swarthout, it is clear that the question of whether the Board reasonably applied

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California’s “some evidence” standard in a prisoner’s parole hearing does not give rise to a claim

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for federal habeas relief. Swarthout, 131 S. Ct. at 862-63; see also Miller v. Oregon Bd. of

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Parole and Post-Prison Supervision, ___F.3d___, 2011 WL 1533512, at *5 (9th Cir. Apr. 25,

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2011) (“The Supreme Court held in [Swarthout v.] Cooke that in the context of parole eligibility

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decisions the due process right is procedural, and entitles a prisoner to nothing more than a fair

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hearing and a statement of reasons for a parole board’s decision[.]”); Roberts v. Hartley,

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___F.3d___, 2011 WL 1365811, at *3 (9th Cir. Apr. 12, 2011) (under the decision in Swarthout,

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California’s parole scheme creates no substantive due process rights and any procedural due

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process requirement is met as long as the state provides an inmate seeking parole with an

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opportunity to be heard and a statement of the reasons why parole was denied); Pearson, 2011
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WL 1238007, at *3 (9th Cir. Apr. 5, 2011) (“While the Court did not define the minimum

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process required by the Due Process Clause for denial parole under the California system, it

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made clear that the Clause’s requirements were satisfied where the inmates ‘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.’”)

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In this case, the habeas petition and exhibits attached thereto show that petitioner

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was represented by counsel at his 2008 parole suitability hearing. The record also establishes

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that petitioner was heard at the hearing and received a statement of the reasons why the Board

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panel decided to deny him parole. See Pet., Ex. A at 70-79. Petitioner thus received all the

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process due him under the Constitution. Swarthout, 131 S. Ct. 862; see also Miller, 2011 WL

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1533512, at *5; Roberts, 2011 WL 1365811, at *3; Pearson, 2011 WL 1238007, at *3. His

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petition must be dismissed.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. The motion to dismiss (Docket No. 13) be granted.

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2. This case be closed.

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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.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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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 the denial of parole by the parole board).

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Dated: December 28, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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