Robinson v. Cate et al

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/30/2014 RECOMMENDING that respondent's 14 unopposed motion to dismiss be granted. Referred to Judge William B. Shubb; Objections due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

KEVIN DAVID ROBINSON,

12

Petitioner,

13
14

No. 2:13-CV-0973-WBS-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

GARY SWARTHOUT, et al.,

15

Respondents.

16

/

17

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

18

habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole. Pending before the

19

court is respondents’ unopposed motion to dismiss (Doc 14).

20

Petitioner claims: (1) the denial of parole was not supported by “some evidence”;

21

and (2) the application of “Marsy’s Law,” enacted after his conviction, to increase the time for

22

reconsideration for parole, violates the Ex Post Facto clause. Respondent argues that the claims

23

are not cognizable.

24

///

25

///

26

///
1

1
2
3
4
5
6
7
8

Reversing the Ninth Circuit’s decision in Hayward v. Marshall, 603 F.3d 546 (9th
Cir. 2010) (en banc), the United States Supreme Court observed:
Whatever liberty interest exists [in parole] is, of course, a state
interest. There is no right under the Federal Constitution to be
conditionally released [on parole] before the expiration of a valid sentence,
and the States are under no duty to offer parole to their prisoners. Id. at 7.
When, however, a State creates a liberty interest, the Due Process Clause
requires fair procedures for its vindication – and federal courts will review
the application of those constitutionally required procedures. . . .
Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011) (per curiam) (citing Greenholtz
v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 7 (1979))
(emphasis in original).

9
The Court held:
10
11
12
13
14
15
16

. . . In the context of parole, we have held that the procedures
required are minimal. In Greenholtz, we found that a prisoner subject to a
parole statute similar to California’s received adequate process when he
was allowed an opportunity to be heard and was provided a statement of
the reasons why parole was denied. 442 U.S. at 16. “The Constitution,”
we held, “does not require more.” Ibid. Cooke and Clay received at least
this amount of process: They were allowed to speak at their parole
hearings and to contest the evidence against them, were afforded access to
their records in advance, and were notified as to the reasons why parole
was denied. (citations omitted).
That should have been the beginning and the end of the federal
habeas courts’ inquiry into whether Cook and Clay received due
process. . . .

17
Id.
18
The Court added that “[n]o opinion of ours supports converting California’s ‘some evidence’ rule
19
into a substantive federal requirement” and “. . . it is no federal concern . . . whether California’s
20
‘some evidence’ rule of judicial review (a procedure beyond what the Constitution demands) was
21
correctly applied” because “a ‘mere error of state law’ is not a denial of due process.” Id. at 86222
63 (citing Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)). Thus, in cases challenging the denial
23
of parole, the only issue subject to federal habeas review is whether the inmate received the
24
procedural due process protections of notice and an opportunity to be heard. There is no other
25
clearly established federal constitutional right in the context of parole.
26
2

1

In this case, petitioner claims that his federal due process rights were violated

2

because the denial of parole was not based on “some evidence.” As discussed above, it is not the

3

place of the federal court to rule on how California’s parole standard has been applied except to

4

inquire as to the basic procedural guarantees. To the extent petitioner claims that he was denied

5

procedural protections required by the federal constitution, the record clearly establishes that

6

petitioner was provided with the basic Greenholtz protections of notice and an opportunity to be

7

heard. Because the federal constitution requires nothing more in the parole context, the petition

8

must be denied.

9

Turning to petitioner’s claim that application of “Marsy’s Law” to increase the

10

time between parole review hearings, as respondent notes petitioner is a member of the class of

11

prisoners litigating this same claim in Gilman v. Brown, et al., E. Dist. Cal. no. 2:05-CV-0830-

12

LKK-CKD.1 Because petitioner’s interests in this claim are being adequately represented by the

13

class in Gilman, petitioner should not be allowed to proceed with a separate action raising the

14

same claim. See Colt v. Swarthout, 2011 WL 4710804, at *2-3 (E.D. Cal. 2011); Rivers v.

15

Swarthout, 2011 WL 6293756, at *2-3 (E.D. Cal. 2011). Petitioner’s Marsy’s Law claim should

16

be dismissed.

17

///

18

///

19

///

20

///

21

///

22
23
24
25
26

1

The court may take judicial notice pursuant to Federal Rule of Evidence 201 of
matters of public record. See U.S. v. 14.02 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008).
Thus, this court may take judicial notice of state court records, see Kasey v. Molybdenum Corp.
of America, 336 F.2d 560, 563 (9th Cir. 1964), as well as its own records, see Chandler v. U.S.,
378 F.2d 906, 909 (9th Cir. 1967).
The Gilman class is defined as all California prisoners, such as petitioner, serving
life sentences with the possibility for parole for crimes occurring before November 4, 2008.
3

1
2

Based on the foregoing, the undersigned recommends that respondent’s
unopposed motion to dismiss (Doc. 14) be granted.

3

These findings and recommendations are submitted to the United States District

4

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

5

after being served with these findings and recommendations, any party may file written

6

objections with the court. Responses to objections shall be filed within 14 days after service of

7

objections. Failure to file objections within the specified time may waive the right to appeal.

8

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

9
10
11
12

DATED: October 30, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
4