Jones v. Swarthout

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/4/2014 RECOMMENDING that petitioner's application for a writ of habeas corpus be dismissed; and the Clerk be directed to close the case. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL C. JONES,

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No. 2:11-cv-1497-KJM-EFB P

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

GARY SWARTHOUT,
Respondent.

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This is an action by a state prisoner proceeding pro se with a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On July 18, 2012, findings and recommendations were

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filed which recommended that the petition be dismissed. ECF Nos. 8, 11. The petition contains

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five claims for relief. The findings and recommendations addressed all but one of the claims on

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the merits. See id. The remaining claim, that the Board of Parole Hearings violated petitioner’s

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First Amendment rights, was found to be unexhausted and it was recommended, mistakenly, that

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it be dismissed on that basis. ECF No. 11 at 5-6. The district judge reviewed the findings and

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recommendations, and concluded that the First Amendment claim could not be dismissed on the

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basis of exhaustion. Rather, “[w]hen a prisoner files a petition containing both exhausted and

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unexhausted claims, the district court may dismiss the entire petition or stay the petition, allowing

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the prisoner to fulfill the exhaustion requirement before continuing with federal proceedings.”

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See ECF No. 12 at 2 (citing Rhines v. Weber, 544 U.S. 269, 275-276 (2005); King v. Ryan, 564

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F.3d 1133, 1141 (9th Cir. 2009)). Thus, as the district judge explained, the court may not dismiss
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unexhausted claims for failure to exhaust while also reviewing exhausted claims on the merits.

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Therefore, the district judge referred the matter back to the assigned magistrate judge to

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determine whether the petition should be (1) dismissed in its entirety based on the unexhausted

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claim; (2) stayed to allow petitioner to exhaust state remedies for his First Amendment claim; or

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(3) dismissed on the merits. Id. at 3. For the reasons explained below, it is recommended that the

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petition be dismissed on the merits.

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As to the unexhausted claim, petitioner alleges that the Board of Parole Hearings violated

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his First Amendment right to “free speech” by “trying to force petitioner to admit guilt to his

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offense.” ECF No. 8 at 5. However, there is no constitutional right not to admit guilt at a parole

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hearing. Mezhbein v. Early, No. C 98-4048 PJH, 2002 U.S. Dist. LEXIS 7735, at *12-14 (N.D.

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Cal. Apr. 22, 2002). Although California law precludes the Board from requiring an inmate to

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admit guilt, see Cal. Pen. Code § 5011(b) (“The Board . . . shall not require, when setting parole

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dates, an admission of guilt to any crime for which an inmate was committed”), it does not follow

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that “[t]he United States Constitution . . . preclude[s] harsher punishment for convicted felons

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who deny their guilt.” Ochoa v. Marshall, No. CV 08-5337 AHS, 2008 U.S. Dist. LEXIS

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118829, at *21-22 (C.D. Cal. Oct. 9, 2008). Thus, even if the Board found petitioner unsuitable

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because he would not admit his guilt, it would not entitle him to federal habeas relief. Id. at 22.

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As noted in the July 18, 2012 findings and recommendations, petitioner was present at his

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parole hearing, was given an opportunity to be heard, and was provided a statement of reasons for

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the denial of parole. ECF No. 11 at 3. While petitioner may disagree with the Board’s reasons

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for denying parole, “[t]he Constitution does not require more.” Greenholtz v. Inmates of Neb.

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Penal & Correctional Complex, 442 U.S. 1, 16 (1979).

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To the extent petitioner seeks habeas relief on the ground that the Board violated section

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5011(b), this is a state law claim for which federal habeas relief is not available. See Estelle v.

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McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas unavailable for violations of state law or for

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alleged error in the interpretation or application of state law); Roberts v. Hartley, 640 F.3d 1042,

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1046 (9th Cir. 2011) (“A state’s misapplication of its own laws does not provide a basis for

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granting a federal writ of habeas corpus.”).
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Therefore, petitioner’s First Amendment claim lacks merit and must be dismissed on the

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merits. Further, for the reasons previously stated in the July 18, 2012 findings and

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recommendations (ECF No. 11), the other claims also lack merit and should be dismissed.

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Accordingly, it is hereby RECOMMENDED that:

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1. Petitioner’s application for a writ of habeas corpus be dismissed; and

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2. The Clerk be directed to close the case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

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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.” Failure to file objections

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

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In

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his objections petitioner may address whether a certificate of appealability should issue in the

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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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§ 2255 Cases (the district court must issue or deny a certificate of appealability when it enters a

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final order adverse to the applicant).

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Dated: February 4, 2014.

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