Hairston v. Swarthout

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/9/11 ORDERING that petitioners application for a writ of habeas corpus is DISMISSED; Clerk is directed to close the case; The court declines to issue a certificate of appealability; and Clerk shall serve a copy of this order together with a copy of petitioners 1/11/11 petition for a writ of habeas corpus with any and all attachments on Michael Patrick Farrell. CASE CLOSED. (cc Michael Farrell) (Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

JOHNNIE HAIRSTON,
Petitioner,

11
12

vs.

13

No. CIV S-11-0102 EFB P

G. SWARTHOUT,
Respondent.

14

/

15
16

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28

17

U.S.C. § 2254. He challenges the California Board of Parole Hearings’ 2009 finding that he was

18

unsuitable for parole, claiming that the Board’s decision violated his federal right to due process.

19

Dckt. No. 1 at 13.1 This proceeding was referred to this court by Local Rule 302 pursuant to 28

20

U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See E.D. Cal.

21

Local Rules, Appx. A, at (k)(4).

22

For the reasons explained below, the court finds that petitioner’s application for a writ of

23

habeas corpus must be dismissed. See Rule 4, Rules Governing § 2254 Cases (requiring

24

summary dismissal of habeas petition if, upon initial review by a judge, it plainly appears “that

25
1

26

For ease of reference, all references to page numbers in the petition are to those
assigned via the court’s electronic filing system.
1

1

the petitioner is not entitled to relief in the district court”).

2

In California, a prisoner is entitled to release unless there is “some evidence” of his or her

3

current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re

4

Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). But the United States Supreme Court recently held

5

that federal habeas review of a parole denial is limited to the narrow question of whether a

6

petitioner has received “fair procedures.” Swarthout v. Cooke, 526 U.S. __ (2011), No. 10-333,

7

2011 WL 197627, at *2 (Jan. 24, 2011). In other words, a federal court may only review

8

whether a petitioner has received a meaningful opportunity to be heard and a statement of

9

reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners

10

were “allowed to speak at their parole hearings and to contest the evidence against them, were

11

afforded access to their records in advance, and were notified as to the reasons why parole was

12

denied”). Thus, this court may not review whether the Board correctly applied California’s

13

“some evidence” standard. Id. at *2.

14

The record reflects that petitioner was given the opportunity to be heard at his 2009

15

parole suitability hearing and received a statement of the reasons why parole was denied. See

16

Dckt. No. 1 at 40-113. This is all that due process requires. Swarthout, 2011 WL 197627, at

17

**2-3.2 Accordingly, the petition should be dismissed for failure to state a cognizable claim.

18

There is no basis for concluding that a tenable claim for relief could be pleaded if leave to amend

19

were granted. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (petition for habeas corpus

20

should not be dismissed without leave to amend unless it appears that no tenable claim for relief

21

can be pleaded were such leave granted).

22

////

23

////

24
2

25
26

Petitioner does assert that he “did not sign his Board Packet regarding his understanding
of his Rights and never signed consent to be appointed an Attorney, or a consent to his thereafter
appointed counsel to review/possess his Central File or any other confidential material.” Dckt.
No. 1. at 20. None of these issues constitutes a denial of due process under Swarthout.
2

1

Accordingly, it is hereby ORDERED that:

2

1. Petitioner’s application for a writ of habeas corpus is dismissed;

3

2. The Clerk is directed to close the case;

4

3. The court declines to issue a certificate of appealability; and

5

4. The Clerk shall serve a copy of this order together with a copy of petitioner’s January

6

11, 2011 petition for a writ of habeas corpus with any and all attachments on Michael Patrick

7

Farrell, Senior Assistant Attorney General for the State of California. See Rule 4, Rules

8

Governing § 2254 Cases.

9

DATED: May 9, 2011.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3