Ward v. Price

Filing 5

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/11/14 ORDERING that the Clerk of the Court make a randomDistrict Judge assignment to this case. It is RECOMMENDED that this petition be dismissed. Randomly assigned and referred to Judge William B. Shubb; Objections to F&R due within 21 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LEE WARD,

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No. 2: 14-cv-0559 AC P

Petitioner,
v.
J. PRICE, Warden,
Respondent.

ORDER &
FINDINGS AND RECOMMENDATIONS

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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner pled guilty to second degree murder in 1991 and is

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serving a sentence of twenty-years-to-life. Petitioner challenges the February 21, 2013 three-year

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parole denial by the California Board of Parole Hearings (BPH) on the ground that he should be

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deemed suitable for parole because he poses no danger to public safety. See Petition.

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In 2011, the United States Supreme Court overruled a line of Ninth Circuit precedent that

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had supported habeas review in California cases involving denials of parole by the BPH and/or

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the governor. See Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011). The Supreme Court held that

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federal habeas jurisdiction does not extend to review of the evidentiary basis for state parole

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decisions. Because habeas relief is not available for errors of state law, and because the Due

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Process Clause does not require correct application of California’s “some evidence” standard for

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denial of parole, federal courts may not intervene in parole decisions as long as minimum

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procedural protections are provided. Id. at 861-62.

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The Ninth Circuit has acknowledged that after Swarthout, substantive challenges to parole

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decisions are not cognizable in habeas. Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011).

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“Due process is satisfied as long as the state provides an inmate seeking parole with ‘an

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opportunity to be heard and ... a statement of the reasons why parole was denied.’” Id. (quoting

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Swarthout, 131 S. Ct. at 862)). Petitioner makes no claim that either of these requirements were

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not met. Under Swarthout, this court simply may not consider petitioner’s claim that the BPH

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decision violated due process.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court make a random
District Judge assignment to this case.

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IT IS RECOMMENDED that this petition be dismissed.

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

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issue and, if so, as to which issues. A certificate of appealability may issue under 28 U.S.C. §

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2253 “only if the applicant has made a substantial showing of the denial of a constitutional right.”

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28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate which specific issue or

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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 Judge

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

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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: March 11, 2014

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