Mizicko v. Swarthout

Filing 8

ORDER to SHOW CAUSE signed by Magistrate Judge Craig M. Kellison on 06/06/11 ordering petitioner is required to show cause in writing within 30 days of the date of this order, why his petition for a writ of habeas corpus should not be summarily dismissed. (Plummer, M)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN M. MIZICKO, 12 Petitioner, 13 14 No. CIV S-11-0953-CMK-P vs. ORDER GARY SWARTHOUT, 15 Respondent. 16 / 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole. Pending before the 19 court is petitioner’s petition for a writ of habeas corpus (Doc. 1). 20 Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary 21 dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any 22 exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the 23 instant case, it is plain that petitioner is not entitled to federal habeas relief. Reversing the Ninth 24 Circuit’s decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), the United 25 /// 26 /// 1 1 States Supreme Court recently observed: 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. . . . 2 3 4 5 6 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). 7 8 The Court held: 9 15 . . . 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. . . . 16 Id. 10 11 12 13 14 17 The Court added that “[n]o opinion of ours supports converting California’s ‘some evidence’ rule 18 into a substantive federal requirement” and “. . . it is no federal concern . . . whether California’s 19 ‘some evidence’ rule of judicial review (a procedure beyond what the Constitution demands) was 20 correctly applied” because “a ‘mere error of state law’ is not a denial of due process.” Id. at 862- 21 63 (citing Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)). Thus, in cases challenging the denial 22 of parole, the only issue subject to federal habeas review is whether the inmate received the 23 procedural due process protections of notice and an opportunity to be heard. There is no other 24 clearly established federal constitutional right in the context of parole. 25 /// 26 /// 2 1 Here, to the extent petitioner claims that the decision to deny parole was not based 2 on “some evidence” or otherwise failed to satisfy substantive due process, the claim is foreclosed 3 as a matter of law because there is no clearly established federal constitutional substantive due 4 process right in parole. To the extent petitioner claims that he was not provided the minimal 5 procedural due process protections of notice and an opportunity to be heard, the petition must be 6 denied because it is clear on the face of the petition and documents attached thereto that 7 petitioner was provided the minimum procedural protections guaranteed by the federal 8 constitution. 9 Based on the foregoing, petitioner is required to show cause in writing, within 30 10 days of the date of this order, why his petition for a writ of habeas corpus should not be 11 summarily dismissed. Petitioner is warned that failure to respond to this order may result in 12 dismissal of the petition for the reasons outlined above, as well as for failure to prosecute and 13 comply with court rules and orders. See Local Rule 110. 14 IT IS SO ORDERED. 15 16 17 18 DATED: June 6, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?