Watkins v. Monday
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/23/11 ORDERING that Petitioner's application to proceed in forma pauperis is granted; and The Clerk of the Court is directed to assign a district judge to this case; and RECOMMENDING that petitioner's application for writ of habeas corpus be DENIED. Referred to Judge Garland E. Burrell, Jr; Objections due within 21 days after being served with these findings and recommendations. (Becknal, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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NOEL WATKINS,
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Petitioner,
vs.
RICK MONDAY, et al.,
ORDER AND
Respondents.
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No. 2:11-cv-1327 KJN P
FINDINGS AND RECOMMENDATIONS
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Petitioner, a state prisoner proceeding without counsel, has filed an application for
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a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in
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forma pauperis.
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Examination of the in forma pauperis application reveals that petitioner is unable
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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be
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granted. See 28 U.S.C. § 1915(a).
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Petitioner raises various claims that his federal constitutional right to due process
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was violated by the April 8, 2010 decision of the California Board of Parole Hearings (hereafter
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“the Board”) to deny petitioner a parole date.
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The Due Process Clause of the Fourteenth Amendment prohibits state action that
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). The United States Constitution does not, of its own force, create
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a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454
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U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no
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constitutional or inherent right of a convicted person to be conditionally released before the
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expiration of a valid sentence.”). However, “a state’s statutory scheme, if it uses mandatory
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language, ‘creates a presumption that parole release will be granted’ when or unless certain
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designated findings are made, and thereby gives rise to a constitutional liberty interest.”
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Greenholtz, 442 U.S. at 12; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a
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state’s use of mandatory language (“shall”) creates a presumption that parole release will be
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granted when the designated findings are made.).
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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, 131 S. Ct. 859, 861 (2011). In California, a
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prisoner is entitled to release on parole unless there is “some evidence” of his or her current
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dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29
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Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that
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“[n]o opinion of [theirs] supports converting California’s ‘some evidence’ rule into a substantive
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federal requirement.” Swarthout, 131 S. Ct. at 862. In other words, the Court specifically
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rejected the notion that there can be a valid claim under the Fourteenth Amendment for
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insufficiency of evidence presented at a parole proceeding. Id. at 862-63. Rather, the protection
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afforded by the federal due process clause to California parole decisions consists solely of the
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“minimal” procedural requirements set forth in Greenholtz, specifically “an opportunity to be
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heard and . . . a statement of the reasons why parole was denied.” Swarthout, 131 S. Ct. at 862-
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63.
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Here, the record reflects that petitioner was present at the 2010 parole hearing,
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that he participated in the hearing, and that he was provided with the reasons for the Board’s
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decision to deny parole. (Dkt. No. 5 at 92 - Dkt. No. 5-1 at 44.) According to the United States
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Supreme Court, the federal due process clause requires no more. Therefore, petitioner’s
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application for a writ of habeas corpus should be denied.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Petitioner’s application to proceed in forma pauperis is granted; and
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2. The Clerk of the Court is directed to assign a district judge to this case;
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IT IS RECOMMENDED that petitioner’s application for writ of habeas corpus be
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denied.
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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 twenty-
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one 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.” If petitioner files
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objections, he shall also address whether a certificate of appealability should issue and, if so, why
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and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if
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the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after
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service of the objections. The parties are advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: June 23, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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