Stewart v. Martel
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 4/19/2011 recommending that petitioner's petition for writ of habeas corpus be dismissed without leave to amend; The court decline to issue a certificate of appealability. Objections due within fourteen days after being served with these findings and recommendations. (Duong, D)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHRISTOPHER ANDREW STEWART,
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Petitioner,
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No. CIV 11-cv-0889-LKK-JFM (HC)
vs.
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MIKE MARTEL, Warden,
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Respondent.
FINDINGS & RECOMMENDATIONS
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of
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habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma
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pauperis.
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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
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Governing Section 2254 Cases. The court must summarily dismiss a petition “[i]f it plainly
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appears from the petition and any attached exhibits that the petitioner is not entitled to relief in
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the district court....” Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see
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also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a
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petition (1) specify all grounds of relief available to the Petitioner; (2) state the facts supporting
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each ground; and (3) state the relief requested. Notice pleading is not sufficient; rather, the
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petition 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
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F.2d 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:
(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
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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
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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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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.
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See also Allen, 482 U.S. at 376-78.
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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 asserts that in 1996 he pleaded
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guilty to murder and was sentenced to fifteen years to life in prison. See Pet. at 1. On June 18,
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2009, petitioner appeared before the Board of Parole Hearings (“the Board”) for a parole
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consideration hearing. See Doc. No. 1 (Part 1) at 49. Petitioner appeared at and participated in
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the hearing. See id. Following deliberations held at the conclusion of the hearing, the Board
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announced their decision to deny petitioner parole and the reasons for that decision. Id. (Part 2)
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at 31-39.
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Petitioner does not contend that his procedural due process rights were violated
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and, for the reasons just discussed, cannot reasonably argue as much. Instead, petitioner
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contends his substantive due process rights were violated. Petitioner argues that the Board
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impermissibly denied parole based on a pre-determined decision and relies on the Board’s
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statement that “[w]e would have came at the decision today no matter what” to show that the
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Board maintains a policy of determining parole denials prior to parole hearing in violation of his
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and other similarly situated prisoners’ substantive due process rights. Examination of the
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petition convinces the court that petitioner’s claim is precisely that which is foreclosed by
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Swarthout.
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Unless a circuit justice or judge issues a certificate of appealability, an appeal
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may not be taken to the Court of Appeals from the final order in a habeas proceeding in which
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the detention complained of arises out of process issued by a state court. 28 U.S.C. §
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2253(c)(1)(A); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability
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may issue only if the applicant makes a substantial showing of the denial of a constitutional
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right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could
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debate whether the petition should have been resolved in a different manner or that the issues
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presented were adequate to deserve encouragement to proceed further. Miller–El v. Cockrell,
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537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should
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issue if the petitioner shows 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 and that jurists of reason would find it
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debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel,
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529 U.S. 473, 483–84 (2000). In determining this issue, a court conducts an overview of the
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claims in the habeas petition, generally assesses their merits, and determines whether the
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resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to
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show more than an absence of frivolity or the existence of mere good faith; however, it is not
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necessary for an applicant to show that the appeal will succeed. Miller–El v. Cockrell, 537 U .S.
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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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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: April 19, 2011.
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