Nava v. Swarthout

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/3/2012 RECOMMENDING that this action be summarily dismissed. Referred to Judge Garland E. Burrell, Jr.; Objections due within 21 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE A.V. NAVA,

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Petitioner,
vs.
GARY SWARTHOUT,

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Respondent.

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No. 2:12-cv-0037 GEB KJN P

FINDINGS AND RECOMMENDATIONS
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I. Introduction

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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. Petitioner has paid the filing fee.

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Petitioner claims that his federal constitutional right to due process was violated by a 2010

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decision of the California Board of Parole Hearings (hereafter “the Board”) to deny him a parole

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date. Petitioner’s claims are based on alleged violations of petitioner’s due process rights under

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the Fourteenth Amendment. For the reasons stated below, the court recommends that the petition

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be dismissed.

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II. Standards

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Under Rule 4 of the Rules Governing Section 2254 Cases, the court must conduct

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a preliminary review of § 2254 habeas petitions and dismiss any petition where it plainly appears
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that petitioner is not entitled to relief in this court. Rule 4 of the Rules Governing Section 2254

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Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any

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attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4,

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Rules Governing Section 2254 Cases; see also Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir.

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1983) (Rule 4 “explicitly allows a district court to dismiss summarily the petition on the merits

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when no claim for relief is stated”). However, a petition for writ of habeas corpus should not be

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dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded

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were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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III. Due Process Claims

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The Due Process Clause of the Fourteenth Amendment prohibits state action that

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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, 863 (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 864. 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. Rather, the protection afforded

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by the federal due process clause to California parole decisions consists solely of the “minimal”

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procedural requirements set forth in Greenholtz, specifically “an opportunity to be heard and . . .

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a statement of the reasons why parole was denied.” Swarthout, 131 S. Ct. at 863-64.

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Here, the record reflects that petitioner was present at the November 23, 2010

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parole hearing, that he participated in the hearing, and that he was provided with the reasons for

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the Board’s decision to deny parole. (Dkt. No. 1 at 61-127.) According to the United States

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Supreme Court, the federal due process clause requires no more.1

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V. Conclusion

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For all of the above reasons, IT IS HEREBY RECOMMENDED that this action
be summarily dismissed. Rule 4, Rules Governing Section 2254 Cases.

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These findings and recommendations are submitted to the United States District

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“The only federal right at issue in the parole context is procedural, and the only proper
inquiry is what process the inmate received, not whether the state court decided the case
correctly. Stuart v. Carey, 2011 WL 2709255 (9th Cir. 2011), citing Swarthout, 131 S. Ct. at
863. Petitioner cannot obtain more process by attempting to characterize his claims in a different
way.
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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: February 3, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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nava0037.bph.156

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