Gonzales v. Lizarraga

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 7/6/2016 RECOMMENDING this petition be dismissed for the reasons discussed within these findings. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GONZALO R. GONZALES,

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Petitioner,

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v.

No. 2:16-cv-1119 GEB GGH P

FINDINGS AND RECOMMENDATIONS

JOE LIZARRAGA,
Respondent.

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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 challenges the 2014 decision by the California Board of

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Parole Hearings (BPH) finding him unsuitable for parole.

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Review of the federal habeas petition and attached exhibits demonstrates that petitioner is

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not entitled to relief on the grounds alleged, thus requiring dismissal of the petition. See Rule 4,

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Rules Governing Section 2254 Cases in the United States District Courts (“[i]f it plainly appears

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from the petition and any attached exhibits that the petitioner is not entitled to relief in the district

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court, the judge must dismiss the petition....”).

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In Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859 (2011), the Supreme Court held that,

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even if a California prisoner has a state-created liberty interest in parole, the only federal due

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process to which a California federal habeas petitioner challenging the denial of parole is entitled

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is the minimal procedural due process protections set forth in Greenholtz v. Inmates of Nebraska
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Penal and Corrections Complex, 442 U.S. 1, 16 (1979) (i.e., an opportunity to be heard, and a

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statement of reasons for the denial). See Swarthout, 562 U.S. at 220. Under the Supreme Court's

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decision in Swarthout, “it is no federal concern...whether California's 'some evidence' rule of

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judicial review (a procedure beyond what the Constitution demands) was correctly applied.” See

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id. at 220-21.

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In Styre v. Adams, 645 F.3d 1106 (9th Cir. 2011), the Ninth Circuit found that the

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Supreme Court's decision in Swarthout applies equally to cases in which the Governor, rather

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than the BPH, found the inmate unsuitable for parole. The Styre court also noted that the federal

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Due Process Clause “does not require that the Governor hold a second suitability hearing before

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reversing a parole decision.” 645 F.3d at 1108. Thus, it appears there is no federal due process

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requirement for a “some evidence” review, whether parole eligibility was denied at the BPH level

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or by the Governor.

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Petitioner claims that the reasons given in the April 30, 2014 parole denial were “arbitrary

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and capricious” because he has been a model inmate and has successfully rehabilitated. (ECF No.

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1 at 1.) Petitioner alleges that the denial must comply with Cal. Penal Code § 3041, and he

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requests that the court order an evidentiary hearing and require the BPH to show cause for its

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denial. Petitioner claims that parole hearings are a pretense and a farce, and the BPH plans to

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keep him in prison forever because he had claimed imperfect self-defense for second degree

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murder. (ECF No. 1 at 2.) Petitioner also alleges that the parole hearing transcript from April 30,

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2014 contains eighty “indiscernables” or inaudibles in the 125 page transcript, rendering it

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insufficient for the court’s review. (ECF No. 1 at 7.)

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These claims are not cognizable. Under the Supreme Court's decision in Swarthout, this

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court may not review whether California's “some evidence” standard was correctly applied in

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petitioner's case. Swarthout, 131 S.Ct. at 862–63. Petitioner claims that BPH decision was

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arbitrary and capricious; however, this claim is also contradicted by the record. Petitioner is only

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entitled to an opportunity to be heard and to be provided a statement of the reasons for the parole

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denial. Id. at 862. The transcript from the hearing indicates that petitioner was represented by

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counsel and both counsel and petitioner were present and had an opportunity to present their
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arguments and were then informed on the record why parole was denied.1 (Ex. C, ECF No. 1 at

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123-248.) The Due Process Clause requires no more.

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IT IS HEREBY RECOMMENDED that this petition be dismissed for the reasons
discussed above.

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

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issue. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has

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made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The

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certificate of appealability must “indicate which specific issue or issues satisfy” the requirement.

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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 fourteen 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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that

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failure to file objections within the specified time waives the right to appeal the District Court’s

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

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Dated: July 6, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/ky:gonz1119.101a

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The number of indiscernible and inaudible notations did not hinder the undersigned in
reviewing the substance of the transcript.
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