Babb v. Hill

Filing 6

ORDER signed by Magistrate Judge Craig M. Kellison on 11/18/14 granting 5 Motion to Proceed IFP. Petitioner shall show cause in writing within 30 days of the date of this order, why his petition for a writ of habeas corpus should not be summarily dismissed. (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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RANDY J. BABB,

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Petitioner,

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No. 2:14-cv-0516-CMK-P

vs.

ORDER

RICK HILL,

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Respondent.

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/

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Petitioner, a state prisoner proceeding with counsel, brings this petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to Magistrate Judge

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jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the

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action.

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Petitioner seeks leave to proceed in forma pauperis. Petitioner has submitted the

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affidavit required by 28 U.S.C. § 1915(a) showing that petitioner is unable to prepay fees and

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costs or give security therefor. The request will be granted.

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Also pending before the court is petitioner’s petition for a writ of habeas corpus

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(Doc. 1). Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary

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dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any
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exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the

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instant case, it is plain that petitioner is not entitled to federal habeas relief. Reversing the Ninth

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Circuit’s decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), the United

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States Supreme Court recently observed:

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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, 562 U.S. 216, 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).

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The Court held:

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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. . . .

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Id. The Court added that “[n]o opinion of ours supports converting California’s ‘some evidence’

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rule into a substantive federal requirement” and “it is no federal concern . . . whether California’s

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‘some evidence’ rule of judicial review (a procedure beyond what the Constitution demands) was

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correctly applied” because “a ‘mere error of state law’ is not a denial of due process.” Id. at 862-

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63 (citing Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)). Thus, in cases challenging the denial

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of parole, the only issue subject to federal habeas review is whether the inmate received the

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procedural due process protections of notice and an opportunity to be heard. There is no other

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clearly established federal constitutional right in the context of parole.
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Here, to the extent petitioner claims that the decision to deny parole was not based

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on “some evidence” or otherwise failed to satisfy substantive due process, the claim is foreclosed

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as a matter of law because there is no clearly established federal constitutional substantive due

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process right in parole. There is no claim in the petition, nor does one appear to be feasible, that

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petitioner was not provided the minimal procedural due process protections of notice and an

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opportunity to be heard, the minimum procedural protections guaranteed by the federal

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constitution.

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Based on the foregoing, petitioner is required to show cause in writing, within 30
days of the date of this order, why this petition for a writ of habeas corpus should not be

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summarily dismissed. Petitioner is warned that failure to respond to this order may result in

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dismissal of the petition for the reasons outlined above, as well as for failure to prosecute and

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comply with court rules and orders. See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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Petitioner’s motion for leave to proceed in forma pauperis (Doc. 5) is

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Petitioner shall show cause in writing, within 30 days of the date of this

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granted; and

order, why his petition for a writ of habeas corpus should not be summarily dismissed.

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DATED: November 18, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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