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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PETER BROWN,

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No. 2:16-cv-02285 JAM GGH
Petitioner,

v.

FINDINGS & RECOMMENDATIONS

ROBERT W. FOX, Warden,

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Respondent.

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INTRODUCTION
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 a November 2014 decision by Governor

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Brown reversing the Board of Parole Hearing’s (“BPH” or “the Board”) decision that petitioner

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was suitable for parole. Pending before the court is respondent’s motion to dismiss on the ground

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that the petition fails to raise a cognizable federal habeas claim, arguing that petitioner’s

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challenge to the Governor’s decision finding him unsuitable for parole does not warrant federal

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habeas review under Swarthout v. Cooke, 562 U.S. 216 (2011). Petitioner filed an opposition

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arguing his due process rights were violated due to the Governor’s decision being unsupported by

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“some evidence” and for a failure to provide him a hearing before the Governor. The

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undersigned now issues the following findings and recommendations granting respondent’s

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motion to dismiss.
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DISCUSSION

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In a per curiam decision, the United States Supreme Court found that the Ninth Circuit

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erred in commanding a federal review of the state’s application of state law in applying the “some

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evidence” standard in the parole eligibility habeas context. Swarthout, 562 U.S. at 220-221.

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Quoting, inter alia, Estella v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed

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that “federal habeas corpus relief does not lie for errors of state law.” Id. While the high court

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found that the Ninth Circuit’s holding that California law does not create a liberty interest in

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parole was a “reasonable application of our cases” (while explicitly not reviewing that holding),

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the Supreme Court stated:

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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.

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Swarthout, 562 U.S. at 220.
Citing Greenholtz,1 the Supreme Court noted it had found under another state’s similar

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parole statute that a prisoner had “received adequate process” when “allowed an opportunity to be

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heard” and “provided a statement of the reasons why parole was denied.” Swarthout, 562 U.S. at

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220. Noting their holding therein that “[t]he Constitution [] does not require more,” the justices

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in the instances before them, found the prisoners had “received at least this amount of process:

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They were allowed to speak at their parole hearings and to contest the evidence against them,

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were afforded access to their records in advance, and were notified as to the reasons why parole

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was denied.” Id.

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The Supreme Court was emphatic in asserting “[t]hat should have been the beginning and

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the end of the federal habeas courts’ inquiry…” Id. “It will not do to pronounce California’s

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‘some evidence’ rule to be ‘a component’ of the liberty interest…” Id. at 221. “No opinion of

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ours supports converting California’s ‘some evidence’ rule into a substantive federal

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requirement.” Id. at 220-221. The Ninth Circuit recently noted that in light of Swarthout v.

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Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979).
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Cooke, certain Ninth Circuit jurisprudence had been reversed and “there is no substantive due

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process right created by California’s parole scheme.” Roberts v. Hartley, 640 F.3d 1046 (9th Cir.

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2011). Thus, there is no federal due process requirement for a “some evidence” review and

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federal courts are precluded from review of the state court’s application of its “some evidence”

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standard.

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Moreover, one of the petitioners in Swarthout included an inmate who was determined

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suitable for parole by the BPH but which determination was subsequently reversed by the

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governor. 131 S.Ct. at 218. The Swarthout Court did not distinguish between this circumstance

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and the one involving a parole board decision denying parole on the question of the due process

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to which a petitioner is entitled. In Swarthout, the Supreme Court noted that both petitioners had

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received the requisite due process by having been “allowed to speak at their parole hearings and

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to contest the evidence against them,” and had been “afforded access to their records in advance,

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and were notified as to the reasons why parole was denied.” Id at 220.

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Here, in his opposition, petitioner asserts that he does not “challenge the parole hearing

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process,” “petitioner’s due process of being heard by the board,” or being granted parole. ECF

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No. 17 at 2. Petitioner only contests the Governor’s reversal which cannot be reviewed by this

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court and should be dismissed. The Ninth Circuit has made clear that “[b]ecause there is no

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Supreme Court precedent holding that a state governor must conduct a second parole hearing

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before reversing a parole board’s favorable decision,” any such habeas corpus claim “necessarily

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fail[s].” Styre v. Adams, 645 F.3d 1106, 1109 (9th Cir. 2011), citing Harrington v. Richter, —

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U.S. —, 131 S.Ct. 770, 786, 178 L.Ed.2d 624[] (2011). See also Staich v. Brown, 2015 WL

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8539043 (E.D. Cal. 2015) holding meritless the same arguments petitioner makes here. Thus,

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there is no federal due process requirement contemplating review of a governor’s decision to

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overrule that of a parole board. Indeed, federal courts are precluded from such review as it

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pertains to petitions for habeas corpus.

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CONCLUSION

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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
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certificate of appealability may issue only “if the applicant has made a substantial showing of the

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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these

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findings and recommendations, a substantial showing of the denial of a constitutional right has

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not been made in this case.

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According, IT IS HEREBY RECOMMENDED that:

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1. Respondent’s motion to dismiss (ECF No. 14) be granted;

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2. The petition be dismissed with prejudice; and

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3. The District Court decline to issue a certificate of appealability.

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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, any party 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.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 8, 2017

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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