Argon v. CDCR et al

Filing 6

ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/14/16 ORDERING that petitioner's request for unspecified relief (ECF No. 3 ) is DENIED. The Clerk of the Court is directed to send petitioner a copy of the pris oner complaint form used in this district. It is RECOMMENDED that Petitioner's application for a writ of habeas corpus be dismissed. No certificate of appealability shall issue. 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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FRANCISCO ARGON,

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Petitioner,

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No. 2:16-cv-2826 WBS AC P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CDCR, et al.,

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Respondents.

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

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pursuant to 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1).

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I.

Application to Proceed In Forma Pauperis
Petitioner has not filed an in forma pauperis affidavit or paid the required filing fee. See

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28 U.S.C. §§ 1914(a); 1915(a). However, the court will not assess a filing fee at this time.

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Instead, the undersigned will recommend summary dismissal of the petition.

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II.

Petitioner’s Allegations
Petitioner challenges a July 2015 decision by the Board of Parole Hearings (Board),

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denying him parole. ECF No. 1 at 1. He asserts that his due process rights were violated when

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the Board failed to make an impartial decision because he had filed a 602 appeal. Id. at 5.

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Petitioner also contends that the Board erred in finding he had insufficient credibility, did not
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have an appropriate attitude towards the crime, had instances of serious institutional misconduct,

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and had insufficient institutional programming. Id. at 7-12.

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III.

Discussion

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Rule 4 of the Habeas Rules requires the court to summarily dismiss a habeas petition “[i]f

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it plainly appears from the petition and any exhibits annexed to it that the petitioner is not entitled

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to relief in the district court.” As set forth below, the petition fails to state a cognizable claim for

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relief and will be dismissed.

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The United States Supreme Court in 2011 overruled a line of Ninth Circuit precedent that

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had supported habeas review of parole denials in California cases. Swarthout v. Cooke, 562 U.S.

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216, 219 (2011). The Supreme Court held that federal habeas jurisdiction does not extend to

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review of the evidentiary basis for state parole decisions. Id. Because habeas relief is not

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available for errors of state law, and because the Due Process Clause does not require correct

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application of California’s “some evidence” standard for denial of parole, federal courts may not

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intervene in parole decisions as long as minimum procedural protections are provided. Id. at 219-

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20. The protection afforded by the federal Due Process Clause to California parole decisions

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consists solely of the “minimum” procedural requirements set forth in Greenholtz v. Inmates of

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Neb. Penal & Corr. Complex, 442 U.S. 1 (1979). Cooke, 562 U.S. at 220. Specifically, that

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petitioner was provided with “an opportunity to be heard and . . . a statement of the reasons why

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parole was denied.” Id. (citing Greenholtz, 442 U.S. at 16).

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The transcript attached to the petition make clear that petitioner was present at the hearing,

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represented by counsel, afforded an interpreter, and provided a statement of the reasons parole

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was denied. ECF No. 1 at 58-185. “[T]he beginning and the end of the federal habeas courts’

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inquiry” is whether petitioner received “the minimum procedures adequate for due-process

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protection.” Cooke, 562 U.S. at 220. The Ninth Circuit has acknowledged that after Cooke,

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substantive challenges to parole decisions are not cognizable in habeas. Roberts v. Hartley, 640

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F.3d 1042, 1046 (9th Cir. 2011). Petitioner received all the process he was due and his challenge

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to the denial of parole is therefore not cognizable.

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Petitioner has also filed a letter in which he appears to make allegations that correctional
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officers are retaliating against him for filing this petition and he requests unspecified relief. ECF

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No. 3. Petitioner is advised that claims concerning the conditions of his confinement and

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violations of his constitutional rights are properly raised in a civil rights complaint filed pursuant

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to 42 U.S.C. § 1983, which provides a remedy for violations of civil rights by state actors.

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Therefore, petitioner must bring these claims in a civil rights action after the inmate grievance

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process has been properly exhausted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request for unspecified relief (ECF No. 3) is denied.

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2. The Clerk of the Court is directed to send petitioner a copy of the prisoner complaint

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form used in this district.

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IT IS FURTHER RECOMMENDED that:

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1. Petitioner’s application for a writ of habeas corpus be dismissed.

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2. No certificate of appealability shall issue.

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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: December 14, 2016

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