Johnson v. Swarthout et al

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/5/11 ORDERING that 2 Motion to Proceed IFP is GRANTED; Petitioners application for a writ of habeas corpus is DISMISSED; The Clerk is directed to close the case; The court DECLINES to issue a certificate of appealability; and the Clerk shall serve a copy of this order together with a copy of petitioners9/15/11 petition for a writ of habeas corpus with any and all attachments on Michael Patrick Farrell. (cc Michael Farrell). (Dillon, 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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THOMAS JOHNSON,

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Petitioner,
vs.
SWARTHOUT, et al.,
Respondents.

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ORDER
/

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No. CIV 11-2448 EFB P

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28

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U.S.C. § 2254. He challenges the California Board of Parole Hearings’ 2010 finding that he was

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unsuitable for parole, claiming that the Board’s decision violated his federal right to due process.

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Dckt. No. 1 at 6.1 This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See E.D. Cal.

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Local Rules, Appx. A, at (k)(4).

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Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a).

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs

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of suit. Therefore, the request will be granted. See 28 U.S.C. § 1915(a). However, for the

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For ease of reference, all references to page numbers in the petition are to those
assigned via the court’s electronic filing system.
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reasons explained below, the court finds that petitioner’s application for a writ of habeas corpus

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must be dismissed. See Rule 4, Rules Governing § 2254 Cases (requiring summary dismissal of

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habeas petition if, upon initial review by a judge, it plainly appears “that the petitioner is not

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entitled to relief in the district court”).

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In California, a prisoner is entitled to release unless there is “some evidence” of his or her

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current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re

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Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). But the United States Supreme Court recently held

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that federal habeas review of a parole denial is limited to the narrow question of whether a

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petitioner has received “fair procedures.” Swarthout v. Cooke, 526 U.S. __ (2011), No. 10-333,

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2011 WL 197627, at *2 (Jan. 24, 2011). In other words, a federal court may only review

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whether a petitioner has received a meaningful opportunity to be heard and a statement of

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reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners

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were “allowed to speak at their parole hearings and to contest the evidence against them, were

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afforded access to their records in advance, and were notified as to the reasons why parole was

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denied”). Thus, this court may not review whether the Board correctly applied California’s

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“some evidence” standard. Id. at *2.
The record reflects that petitioner was given the opportunity to be heard at his 2010

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parole suitability hearing and received a statement of the reasons why parole was denied. See

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Dckt. No. 1 at 113-129. This is all that due process requires. Swarthout, 2011 WL 197627, at

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**2-3. Accordingly, the petition should be dismissed for failure to state a cognizable claim.

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There is no basis for concluding that a tenable claim for relief could be pleaded if leave to amend

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were granted. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (petition for habeas corpus

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should not be dismissed without leave to amend unless it appears that no tenable claim for relief

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can be pleaded were such leave granted).

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Accordingly, it is hereby ORDERED that:

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1. Petitioner’s request for leave to proceed in forma pauperis is granted;

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2. Petitioner’s application for a writ of habeas corpus is dismissed;

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3. The Clerk is directed to close the case;

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4. The court declines to issue a certificate of appealability; and

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5. The Clerk shall serve a copy of this order together with a copy of petitioner’s

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September 15, 2011 petition for a writ of habeas corpus with any and all attachments on Michael

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Patrick Farrell, Senior Assistant Attorney General for the State of California. See Rule 4, Rules

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Governing § 2254 Cases.

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DATED: October 5, 2011.

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