Brooks v. Singh

Filing 5

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/3/12 ORDERING that 2 Motion to Proceed IFP is GRANTED; and the petition be summarily dismissed.(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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HAROLD B. BROOKS,

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Petitioner,

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No. 12-cv-0995 CKD P

vs.
V. SINGH,

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

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corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the April 1, 2010 finding by the

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California Board of Parole Hearings (“Board”) that petitioner was unsuitable for parole. (Dkt.

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No. 1 (“Ptn.”) at 4.) Petitioner has consented to this court’s jurisdiction. (Dkt. No. 4.)

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

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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. For the reasons set forth below, the court will

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dismiss the petition for failing to state a federal habeas claim.

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I. Request to Proceed In Forma Pauperis

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Petitioner requests permission to proceed in forma pauperis. Examination of
petitioner’s in forma pauperis application reveals that petitioner is unable to afford the costs of
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suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C.

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§ 1915(a).

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II. Screening

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An application for a writ of habeas corpus by a person in custody under a

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judgment of a state court can be granted only for violations of the Constitution or laws of the

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United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any

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claim decided on the merits in state court proceedings unless the state court’s adjudication of the

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claim:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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28 U.S.C. § 2254(d) (referenced herein in as “§ 2254(d).”1 It is the habeas petitioner’s burden to

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show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537

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U.S. 19, 25 (2002).

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Petitioner asserts that the Board’s April 2010 decision to deny parole was not
supported by “some evidence” in violation of his constitutional right to due process. (Ptn.)

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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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Title 28 U.S.C. § 2254(d) establishes a precondition to federal habeas relief, not
grounds for entitlement to habeas relief. Fry v. Pliler, 551 U.S. 112, 119 (2007).
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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). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States

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Constitution does not, of its own force, create a protected liberty interest in a parole date, even

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one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of

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Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or inherent right of a convicted

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person to be conditionally released before the expiration of a valid sentence.”). However, a

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state’s statutory scheme, if it uses mandatory language, “creates a presumption that parole release

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will be granted” when or unless certain designated findings are made, and thereby gives rise to a

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constitutional liberty interest. Greenholtz, 442 U.S. at 12. See also Allen, 482 U.S. at 376-78.

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California’s parole scheme gives rise to a liberty interest in parole protected by the

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federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th

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Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). In California, a prisoner is

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entitled to release on parole unless there is “some evidence” of his or her current dangerousness.

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In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-

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53 (2002).

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In Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 861 (2011), the Supreme

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Court reviewed two cases in which California prisoners were denied parole – in one case by the

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Board, and in the other by the Governor after the Board had granted parole. Swarthout, 131 S.

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Ct. at 860-61. The Supreme Court noted that when state law creates a liberty interest, the Due

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Process Clause of the Fourteenth Amendment requires fair procedures, “and federal courts will

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review the application of those constitutionally required procedures.” Id. at 862. The Court

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concluded that in the parole context, however, “the procedures required are minimal” and that the

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“Constitution does not require more” than “an opportunity to be heard” and being “provided a

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statement of the reasons why parole was denied.” Id. (citing Greenholtz, 442 U.S. at 16). The
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Supreme Court therefore rejected Ninth Circuit decisions that went beyond these minimal

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procedural requirements and “reviewed the state courts’ decisions on the merits and concluded

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that they had unreasonably determined the facts in light of the evidence.” Swarthout, 131 S. Ct.

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at 862. In particular, the Supreme Court rejected the application of the “some evidence” standard

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to parole decisions by the California courts as a component of the federal due process standard.

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Id. at 862-63.

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Here, it appears from the record that petitioner was heard at the April 2010

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hearing and received a statement of reasons why the Board panel decided to deny him parole for

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three years. (Ptn. at 19-30 (state court’s summary of Board hearing and decision).) Petitioner

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thus received all the process due him under the Constitution. Swarthout, 131 S. Ct. 862. His due

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process claim must be dismissed.

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Accordingly, 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 petition (Dkt. No. 1) is summarily dismissed pursuant to Rule 4.

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Dated: July 3, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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broo0995.parole ‘some evid’ scrn

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