Mizicko v. Swarthout

Filing 10

ORDER signed by Magistrate Judge Craig M. Kellison on 07/12/11 ordering petitioner's petition for a writ of habeas corpus 1 is summarily dismissed. The court declines to issue a certificate of appealability. The clerk of the court is directed to enter judgment and close the file. CASE CLOSED(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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JOHN M. MIZICKO,

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Petitioner,

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No. CIV S-11-0953-CMK-P

vs.

ORDER

GARY SWARTHOUT,

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Respondent.

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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 denial of parole. Petitioner has

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

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been served or appeared in the action. Pending before the court is petitioner’s petition for a writ

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of habeas corpus (Doc. 1) and response (Doc. 9) to the court’s June 7, 2011, order to show cause.

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In the order to show cause, the court stated:

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Rule 4 of the Federal Rules Governing Section 2254 Cases
provides for summary dismissal of a habeas petition “[i]f it plainly appears
from the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court.” In the instant case,
it is plain that petitioner is not entitled to federal habeas relief. Reversing
the Ninth Circuit’s decision in Hayward v. Marshall, 603 F.3d 546 (9th
Cir. 2010) (en banc), the United States Supreme Court recently observed:

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Whatever liberty interest exists [in parole] is, of course, a
state interest. There is no right under the Federal Constitution to
be conditionally released [on parole] before the expiration of a
valid sentence, and the States are under no duty to offer parole to
their prisoners. Id. at 7. When, however, a State creates a liberty
interest, the Due Process Clause requires fair procedures for its
vindication – and federal courts will review the application of
those constitutionally required procedures. . . .

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Swarthout v. Cooke, 562 U.S. ___, 131 S. Ct. 859, 862 (9th Cir. 2011)
(per curiam) (citing Greenholtz v. Inmates of Neb. Penal and Correctional
Complex, 442 U.S. 1, 7 (1979)) (emphasis in original).

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The Court held:
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. . . In the context of parole, we have held that the
procedures required are minimal. In Greenholtz, we found that a
prisoner subject to a parole statute similar to California’s received
adequate process when he was allowed an opportunity to be heard
and was provided a statement of the reasons why parole was
denied. 442 U.S. at 16. “The Constitution,” we held, “does not
require more.” Ibid. Cooke and Clay received at least this amount
of process: They were allowed to speak at their parole hearings and
to contest the evidence against them, were afforded access to their
records in advance, and were notified as to the reasons why parole
was denied. (citations omitted).
That should have been the beginning and the end of the
federal habeas courts’ inquiry into whether Cook and Clay received
due process. . . .

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Id.

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The Court added that “[n]o opinion of ours supports converting
California’s ‘some evidence’ rule into a substantive federal requirement”
and “. . . it is no federal concern . . . whether California’s ‘some evidence’
rule of judicial review (a procedure beyond what the Constitution
demands) was correctly applied” because “a ‘mere error of state law’ is not
a denial of due process.” Id. at 862-63 (citing Engle v. Isaac, 456 U.S.
107, 121, n.21 (1982)). Thus, in cases challenging the denial of parole, the
only issue subject to federal habeas review is whether the inmate received
the procedural due process protections of notice and an opportunity to be
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heard. There is no other clearly established federal constitutional right in
the context of parole.
Here, to the extent petitioner claims that the decision to
deny parole was not based on “some evidence” or otherwise failed to
satisfy substantive due process, the claim is foreclosed as a matter of law
because there is no clearly established federal constitutional substantive
due process right in parole. To the extent petitioner claims that he was not
provided the minimal procedural due process protections of notice and an
opportunity to be heard, the petition must be denied because it is clear on
the face of the petition and documents attached thereto that petitioner was
provided the minimum procedural protections guaranteed by the federal
constitution.

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The court is not persuaded by petitioner’s argument in his response to the order to show cause

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that, notwithstanding the foregoing, the Swarthout decision does not foreclose the claims raised

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in the instant petition. Petitioner is incorrect in stating that the Supreme Court did not decide

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whether “a right arises in California under the United States Constitution to parole in the absence

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of some evidence of future dangerousness.” The Supreme Court specifically answered that

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question in the negative, concluding that no such right to substantive due process exists under the

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federal constitution and that petitioner is entitled only to certain procedural guarantees.

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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 above, the court finds that issuance of a certificate of appealability is not

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warranted in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Petitioner’s petition for a writ of habeas corpus (Doc. 1) is summarily

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2.

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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dismissed;

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DATED: July 12, 2011
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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