Cook v. Dickinson et al

Filing 13

ORDER signed by Magistrate Judge Craig M. Kellison on 6/22/11 ORDERING that Petitioners petitions for a writ of habeas corpus ( 1 and 10 ) are summarily DISMISSED; The court declines to issue a certificate of appealability; and Clerk of the Court is directed to enter judgment and close this file.CASE CLOSED. (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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RONALD C. COOK,

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No. CIV S-10-3436-CMK-P

Petitioner,
vs.

ORDER

KATHLEEN L. DICKINSON, et al.,
Respondents.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, challenging the 2008 denial of parole. Petitioner

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has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party

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has yet appeared in the action. Pending before the court is petitioner’s original and first amended

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petitions for a writ of habeas corpus (Docs. 1,10).

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On February 3, 2011, the court directed petitioner to show cause in writing why

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this petition should not be summarily dismissed in light of the United States Supreme Court’s

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recent decision in Swarthout v. Cooke, 562 U.S. ___, 131 S. Ct. 859, 862 (9th Cir. 2011) (per

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curiam). Instead of a specific response to the order to show cause, petitioner filed an amended

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petition wherein he continues to argue, as he does in the petition, that he is entitled to relief
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because the Parole Board failed to support their decision with a finding of some evidence that

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petitioner poses an unreasonable risk of danger to society, thus violating his Constitutionally

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protected liberty interest in parole. Petitioner does not, however, claim any procedural due

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process violations, such as denial of an opportunity to be heard or notice of the adverse decision

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and reasons for the decision. Rather, he continues to argue his substantive due process and

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liberty interests were violated, and that his arguments go beyond a mere state law issue, and rise

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to the level of violating his Sixth and Fourteenth Amendment rights.

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Although he acknowledged the Supreme Court’s decision in Swarthout, as set
forth in the undersigned’s prior order, he fails to articulate how his petition states a claim in light

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of that opinion. As the Court held in Swarthout, “[n]o opinion of ours supports converting

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California’s ‘some evidence’ rule into a substantive federal requirement” and “it is no federal

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concern . . . whether California’s ‘some evidence’ rule of judicial review (a procedure beyond

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what the Constitution demands) was correctly applied” because “a ‘mere error of state law’ is not

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a denial of due process.” Id. (citing Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)). Thus, in

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cases challenging the denial of parole, the Supreme Court was clear that only issue subject to

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federal habeas review is whether the inmate received the procedural due process protections of

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notice and an opportunity to be heard, and the federal courts are not to inquire beyond that. See

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id. There is no other clearly established federal constitutional right in the context of parole.

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Because petitioner only raises substantive due process violations, he does not raise

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any cognizable claim in this case, and it will be summarily dismissed under Rule 4 of the Federal

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Rules Governing Section 2254 Cases.

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Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the

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court has considered whether to issue a certificate of appealability. Before petitioner can appeal

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this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.

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22(b). Where the petition is denied on the merits, a certificate of appealability may issue under

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28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a
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constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of

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appealability indicating which issues satisfy the required showing or must state the reasons why

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such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed

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on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1)

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‘that jurists of reason would find it debatable whether the district court was correct in its

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procedural ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775,

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780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)).

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For the reasons set forth in the court’s February 3, 2011, order to show cause and herein, the

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court finds that issuance of a certificate of appealability is not warranted in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Petitioner’s petitions for a writ of habeas corpus (Docs. 1, 10) are

summarily dismissed;

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The court declines to issue a certificate of appealability; and

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3.

The Clerk of the Court is directed to enter judgment and close this file.

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DATED: June 22, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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