Kennedy v. Gonzalez

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 06/06/11 ORDERING the clerk of court randomly assign a District Judge to this case. U.S. District Judge Lawrence K. Karlton randomly assigned to this action. Als o, RECOMMENDING that the motion to stay 3 and the motion for judicial notice 6 be denied. This petition be dismissed. MOTION to STAY 3 and Motion for Judicial Notice 6 referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

JAMES A. KENNEDY,

11

Petitioner,

12
13

No. CIV S-11-1146 GGH P

vs.
TERI GONZALEZ,

14

ORDER &
FINDINGS AND RECOMMENDATIONS

Respondent.
15

/

16

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas

17

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2009 decision by the governor

18

reversing the California Board of Parole Hearings (BPH) finding that found plaintiff suitable for

19

parole.

20

On January 24, 2011, the United States Supreme Court in a per curiam decision

21

found that the Ninth Circuit erred in commanding a federal review of the state’s application of

22

state law in applying the “some evidence” standard in the parole eligibility habeas context.

23

Swarthout v. Cooke, 502 U.S. ___, 131 S. Ct. 859, 861 (2011). Quoting, inter alia, Estelle v.

24

McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed that “‘federal habeas corpus

25

relief does not lie for errors of state law.’” Id. While the high court found that the Ninth

26

Circuit’s holding that California law does create a liberty interest in parole was “a reasonable
1

1

application of our cases” (while explicitly not reviewing that holding),1 the Supreme Court

2

stated:

3

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. In the context of parole, we have held that the
procedures required are minimal.

4
5
6

Swarthout v. Cooke, at 862.
Citing Greenholtz,2 the Supreme Court noted it had found under another state’s

7
8

similar parole statute that a prisoner had “received adequate process” when “allowed an

9

opportunity to be heard” and “provided a statement of the reasons why parole was denied.”

10

Swarthout v. Cooke, at 862. Noting their holding therein that “[t]he Constitution [] does not

11

require more,” the justices in the instances before them, found the prisoners had “received at least

12

this amount of process: They were allowed to speak at their parole hearings and to contest the

13

evidence against them, were afforded access to their records in advance, and were notified as to

14

the reasons why parole was denied.” Id.

15

The Supreme Court was emphatic in asserting “[t]hat should have been the

16

beginning and the end of the federal habeas courts’ inquiry....” Swarthout v. Cooke, at 862. “It

17

will not do to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty

18

interest....” Id., at 863. “No opinion of ours supports converting California’s “some evidence”

19
20
21
22
23
24
25
26

1

While not specifically overruling Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en
banc), the Supreme Court instead referenced Pearson v. Muntz, 606 F.3d 606 (9th Cir. 2010),
which further explained Hayward. Thus, the Supreme Court’s decision in Swarthout, essentially
overruled the general premise of Hayward. When circuit authority is overruled by the Supreme
Court, a district court is no longer bound by that authority, and need not wait until the authority is
also expressly overruled. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en
banc). Furthermore, “circuit precedent, authoritative at the time it was issued, can be effectively
overruled by subsequent Supreme Court decisions that ‘are closely on point,’ even though those
decisions do not expressly overrule the prior circuit precedent.” Miller, 335 F.3d at 899 (quoting
Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)). Therefore, this court
is not bound by Hayward.
2

Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979).
2

1

rule into a substantive federal requirement.” Id., at 862. Thus, there is no federal due process

2

requirement for a “some evidence” review and federal courts are precluded from review of the

3

state court’s application of its “some evidence” standard.3 Petitioner’s claim concerning the

4

“some evidence” standard should therefore be dismissed.

5

Petitioner also raises a claim that the parole denial was improper because it relied

6

on his status as a recovering drug addict. However, this claim has no merit. In Thompson v.

7

Davis, 295 F.3d 890 (9th Cir. 2002), the Ninth Circuit noted:

8

[t]he parole board undeniably has a legitimate penological interests in considering
the plaintiffs’ substance abuse backgrounds during the individualized inquiry for
parole suitability. We hold only that plaintiffs may state a claim under Title II
based on their allegations that the parole board failed to perform an individualized
assessment of the threat they pose to the community by categorically excluding
from consideration for parole all people with substance abuse histories.

9
10
11
12

Thompson, 295 F.3d 890 at 898 n. 4. In the instant case, the governor’s denial set forth an

13

individualized assessment of the threat posed by petitioner with specific examples regarding his

14

substance abuse history and statements while in prison. Petition at 41-43. This claim is

15

meritless.

16

Petitioner’s due process argument that he was not allowed to be heard by the

17

governor prior to the denial is also meritless in light of Swarthout which reviewed two

18

companion cases, one of which was a denial by the governor. Moreover, “[t]he fundamental

19

requirement of due process is the opportunity to be heard ‘at a meaningful time and in a

20

meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976)

21

(citation omitted). Due process requires consideration of three factors:

22
3

23
24
25
26

The court notes some perversity in the result here. Loss of good-time credits, even for a
day, pursuant to decision at a prison disciplinary hearing, must be supported by “some evidence.”
Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768 (1985). Assignment to administrative
segregation requires the same “some evidence” before such an assignment can be justified.
Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.2003). However, a denial of parole eligibility after
sometimes decades in prison, and where another opportunity for parole can be delayed for as
long as fifteen more years, requires no such protection from the federal due process standpoint.
Nevertheless, such is the state of the law.
3

1

First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.

2
3
4
5

Id. at 335.

6

The issue is whether the hearing accorded is meaningful, not whether the hearing

7

was held before the authority with final responsibility to determine a discharge or, in this case,

8

denial of parole. Bates v. Sponberg, 547 F.2d 325, 332 (6th Cir. 1976) (finding no due process

9

violation where although terminated professor was denied hearing before the Board of Regents

10

and the Board failed to review the record prior to discharging him, he appeared before faculty

11

grievance committee and presented evidence). See also Tigrett v. Rector and Visitors of the

12

University of Virginia, 290 F.3d 620, 629-30 (4th Cir. 2002) (following Bates). Similarly, there

13

is no due process violation in revoking a physician’s license where the Board’s decision is made

14

without its own hearing because it is based on an ALJ’s written report after a hearing is provided.

15

Guerrero v. State of New Jersey, 643 F.2d 148, 149-150 (3rd Cir. 1981).4 Furthermore, it is not

16
4

17
18
19
20
21
22
23
24
25
26

Guerrero cited to a variety of circuits at the time interpreting the Supreme Court’s
pronouncement that “the one who decides must hear” in Morgan v. United States, 298 U.S. 468,
481, 56 S.Ct. 906, 912 (1936):
Estate of Varian v. Commissioner of Internal Revenue, 396 F.2d
753, 755 (9th Cir.), cert. denied, 393 U.S. 962, 89 S.Ct. 402, 21
L.Ed.2d 376 (1968) (“The Supreme Court’s statement that ‘(t)he
one who decides must hear’ ... means simply that the officer who
makes the findings must have considered the evidence or
argument.”); Utica Mutual Insurance Company v. Vincent, 375
F.2d 129, 132 (2d Cir.), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19
L.Ed.2d 102 (1967) ( “Nothing in ... (Morgan) ... suggests that the
decider must actually hear the witnesses or be furnished a report on
their credibility; the thrust is quite the opposite.”); DeRemer v.
United States, 340 F.2d 712, 716 (8th Cir. 1965) (“As a matter of
general administrative law, it is well settled, at least since the first
and fourth ‘Morgan’ cases ... that administrative agencies may
properly use subordinates in information-gathering and analysis.”);
Southern Garment Mfrs. Ass’n v. Fleming, 122 F.2d 622, 626
(D.C.Cir.1941) ( “While ‘the one who decides must hear’, it must
4

1

required that the deciding body personally read the record; rather it may consider and appraise the

2

evidence by reviewing a summary or analysis of it prepared by subordinates. Bates, 547 F.2d at

3

332.

4

In the instant case, the Matthews factors were satisfied as the governor’s denial set

5

forth a detailed report demonstrating a thorough analysis of the evidence and facts set forth in the

6

BPH hearing. This claim should be denied.

7

Petitioner’s motion to stay this case in order to exhaust his state remedies with

8

respect to claims that would be meritless on federal review is also denied for the reasons

9

discussed above.

10
11

Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this
case.

12

IT IS HEREBY RECOMMENDED that:

13

1. The motion to stay (Doc. 3) and the motion for judicial notice (Doc. 6) be

14

denied;

15

2. This petition be dismissed.

16

If petitioner files objections, he shall also address if a certificate of appealability

17

should issue and, if so, as to which issues. A certificate of appealability may issue under 28

18

U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

19

constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate

20

which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3).

21

These findings and recommendations are submitted to the United States District

22

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

23

days after being served with these findings and recommendations, petitioner may file written

24
25
26

be remembered that ‘hear’ is used in the artistic sense of requiring
certain procedural minima to insure an informed judgment by the
one who had the responsibility of making the final decision and
order.”).
5

1

objections with the court. Such a document should be captioned “Objections to Magistrate

2

Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

3

within the specified time may waive the right to appeal the District Court’s order. Martinez v.

4

Ylst, 951 F.2d 1153 (9th Cir. 1991).

5

DATED: June 6, 2011
/s/ Gregory G. Hollows
___________________________________
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE

6
7
8
GGH: AB

9

kenn1146.parolescrn

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
6