Freeman v. Swarthout

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 04/25/13 recommending that this petition be dismissed Referred to Judge Troy L. Nunley. Objections due within 21 days. (Plummer, 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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TREVOR FREEMAN,
Petitioner,

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No. 2:13-cv-0712 TLN AC P

vs.
GARY SWARTHOUT, et al.,
Respondents.

FINDINGS AND RECOMMENDATIONS
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the governor’s decision

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reversing the January 2012 grant of parole by the California Board of Parole Hearings (BPH).

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The BPH’s decision to grant parole became final on June 29, 2012. Thirty days later, the

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governor, pursuant to his authority under Article V, § 8 of the California Constitution and Cal.

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Pen. Code § 3041.2, reversed the decision of the parole board. Petitioner claims that the

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governor’s decision was arbitrary and capricious because it was not supported by any evidence

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in the record with a rational nexus to any determination that petitioner currently poses an

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unreasonable risk of danger if released. See Petition.

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In 2011, the United States Supreme Court overruled a line of Ninth Circuit
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precedent that had supported habeas review in California cases involving denials of parole by the

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BPH and/or the governor. See Swarthout v. Cooke, __ U.S. __, 131 S. Ct. 859, 861 (2011).

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The Supreme Court held that federal habeas jurisdiction does not extend to review of the

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evidentiary basis for state parole decisions. Because habeas relief is not available for errors of

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state law, and because the Due Process Clause does not require correct application of

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California’s “some evidence” standard for denial of parole, federal courts may not intervene in

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parole decisions as long as minimum procedural protections are provided. Id. at 861-62. One of

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the petitioners before the Supreme Court in Swarthout was, like petitioner here, a prisoner who

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had been granted parole by the BPH but whose parole recommendation was subsequently

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reversed by the governor. 131 S. Ct. at 861.
The Ninth Circuit has acknowledged that after Swarthout, substantive challenges

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to parole decisions are not cognizable in habeas. Roberts v. Hartley, 640 F.3d 1042, 1046 (9th

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Cir. 2011). The rule is the same when, as here, a petitioner challenges a decision by the

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governor rather than a decision of the parole board. Styre v. Adams, 645 F.3d 1106, 1108-09

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(9th Cir. 2011). Neither a claim that the governor’s decision is usupported by evidence nor a

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claim that the governor failed to hold a second hearing can support habeas relief. Id. at 1109.

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Under Swarthout and Styre, this court simply may not consider petitioner’s claim that the

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governor’s decision violated due process.

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Accordingly, IT IS HEREBY RECOMMENDED that this petition be dismissed.

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If petitioner files objections, he shall also address if a certificate of appealability

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should issue and, if so, as to which issues. A certificate of appealability may issue under 28

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U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate

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which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3).

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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 twenty2

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one days after being served with these findings and recommendations, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

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

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 25, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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