Brown v. Fox

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 06/08/17 recommending that respondent's motion to dismiss 14 be granted. The petition be dismissed with prejudice; and the District Court decline to issue a certificate of appealability. MOTION to DISMISS 14 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER BROWN, 12 13 14 No. 2:16-cv-02285 JAM GGH Petitioner, v. FINDINGS & RECOMMENDATIONS ROBERT W. FOX, Warden, 15 Respondent. 16 17 18 INTRODUCTION Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. Petitioner challenges a November 2014 decision by Governor 20 Brown reversing the Board of Parole Hearing’s (“BPH” or “the Board”) decision that petitioner 21 was suitable for parole. Pending before the court is respondent’s motion to dismiss on the ground 22 that the petition fails to raise a cognizable federal habeas claim, arguing that petitioner’s 23 challenge to the Governor’s decision finding him unsuitable for parole does not warrant federal 24 habeas review under Swarthout v. Cooke, 562 U.S. 216 (2011). Petitioner filed an opposition 25 arguing his due process rights were violated due to the Governor’s decision being unsupported by 26 “some evidence” and for a failure to provide him a hearing before the Governor. The 27 undersigned now issues the following findings and recommendations granting respondent’s 28 motion to dismiss. 1 1 DISCUSSION 2 In a per curiam decision, the United States Supreme Court found that the Ninth Circuit 3 erred in commanding a federal review of the state’s application of state law in applying the “some 4 evidence” standard in the parole eligibility habeas context. Swarthout, 562 U.S. at 220-221. 5 Quoting, inter alia, Estella v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed 6 that “federal habeas corpus relief does not lie for errors of state law.” Id. While the high court 7 found that the Ninth Circuit’s holding that California law does not create a liberty interest in 8 parole was a “reasonable application of our cases” (while explicitly not reviewing that holding), 9 the Supreme Court stated: 10 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. In the context of parole, we have held that the procedures required are minimal. 11 12 13 Swarthout, 562 U.S. at 220. Citing Greenholtz,1 the Supreme Court noted it had found under another state’s similar 14 15 parole statute that a prisoner had “received adequate process” when “allowed an opportunity to be 16 heard” and “provided a statement of the reasons why parole was denied.” Swarthout, 562 U.S. at 17 220. Noting their holding therein that “[t]he Constitution [] does not require more,” the justices 18 in the instances before them, found the prisoners had “received at least this amount of process: 19 They were allowed to speak at their parole hearings and to contest the evidence against them, 20 were afforded access to their records in advance, and were notified as to the reasons why parole 21 was denied.” Id. 22 The Supreme Court was emphatic in asserting “[t]hat should have been the beginning and 23 the end of the federal habeas courts’ inquiry…” Id. “It will not do to pronounce California’s 24 ‘some evidence’ rule to be ‘a component’ of the liberty interest…” Id. at 221. “No opinion of 25 ours supports converting California’s ‘some evidence’ rule into a substantive federal 26 requirement.” Id. at 220-221. The Ninth Circuit recently noted that in light of Swarthout v. 27 28 1 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). 2 1 Cooke, certain Ninth Circuit jurisprudence had been reversed and “there is no substantive due 2 process right created by California’s parole scheme.” Roberts v. Hartley, 640 F.3d 1046 (9th Cir. 3 2011). Thus, there is no federal due process requirement for a “some evidence” review and 4 federal courts are precluded from review of the state court’s application of its “some evidence” 5 standard. 6 Moreover, one of the petitioners in Swarthout included an inmate who was determined 7 suitable for parole by the BPH but which determination was subsequently reversed by the 8 governor. 131 S.Ct. at 218. The Swarthout Court did not distinguish between this circumstance 9 and the one involving a parole board decision denying parole on the question of the due process 10 to which a petitioner is entitled. In Swarthout, the Supreme Court noted that both petitioners had 11 received the requisite due process by having been “allowed to speak at their parole hearings and 12 to contest the evidence against them,” and had been “afforded access to their records in advance, 13 and were notified as to the reasons why parole was denied.” Id at 220. 14 Here, in his opposition, petitioner asserts that he does not “challenge the parole hearing 15 process,” “petitioner’s due process of being heard by the board,” or being granted parole. ECF 16 No. 17 at 2. Petitioner only contests the Governor’s reversal which cannot be reviewed by this 17 court and should be dismissed. The Ninth Circuit has made clear that “[b]ecause there is no 18 Supreme Court precedent holding that a state governor must conduct a second parole hearing 19 before reversing a parole board’s favorable decision,” any such habeas corpus claim “necessarily 20 fail[s].” Styre v. Adams, 645 F.3d 1106, 1109 (9th Cir. 2011), citing Harrington v. Richter, — 21 U.S. —, 131 S.Ct. 770, 786, 178 L.Ed.2d 624[] (2011). See also Staich v. Brown, 2015 WL 22 8539043 (E.D. Cal. 2015) holding meritless the same arguments petitioner makes here. Thus, 23 there is no federal due process requirement contemplating review of a governor’s decision to 24 overrule that of a parole board. Indeed, federal courts are precluded from such review as it 25 pertains to petitions for habeas corpus. 26 CONCLUSION 27 28 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 3 1 certificate of appealability may issue only “if the applicant has made a substantial showing of the 2 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these 3 findings and recommendations, a substantial showing of the denial of a constitutional right has 4 not been made in this case. 5 According, IT IS HEREBY RECOMMENDED that: 6 1. Respondent’s motion to dismiss (ECF No. 14) be granted; 7 2. The petition be dismissed with prejudice; and 8 3. The District Court decline to issue a certificate of appealability. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: June 8, 2017 18 19 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 4

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