Tamayo v. Fox

Filing 8

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/17/2017 GRANTING petitioner's 6 motion to proceed IFP; petitioner's application for writ of habeas corpus is SUMMARILY DISMISSED; this case is CLOSED; and the court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOE TOMAYO,

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No. 2:17-cv-0025 CKD P
Petitioner,

v.

ORDER

ROBERT W. FOX,
Respondent.

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

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corpus pursuant to 28 U.S.C. § 2254. He has consented to have all matters in this action before a

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United States Magistrate Judge. See 28 U.S.C. § 636(c).

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Petitioner requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Examination of the request to proceed in forma pauperis reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the request for leave to proceed in forma pauperis will be granted.

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See 28 U.S.C. § 1915(a).

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Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all

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petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the

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petitioner is not entitled to relief. The court has conducted that review.

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Petitioner is serving a sentence of seven years-to-life imprisonment imposed in 1977 for
first degree murder and other offenses. Petitioner challenges his being denied parole in 2015.
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As a California prisoner serving an indeterminate sentence, petitioner has a liberty interest

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in parole protected by the Due Process Clause of the Fourteenth Amendment. Swarthout v.

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Cooke, 562 U.S. 216, 219-20. (2011). However, the procedural protections which must be

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afforded with respect to the liberty interest are minimal; the “Constitution does not require more”

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than “an opportunity to be heard” at a parole hearing and that the potential parolee be “provided a

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statement of the reasons why parole was denied.” Id. at 220. Petitioner does not allege he was

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denied the opportunity to be heard at his 2015 parole hearing nor that he was not given a

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statement of reasons as to why he was denied parole.

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To the extent petitioner challenges whether the evidence presented at his parole

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proceeding is sufficient to sustain denial of parole, petitioner has no Constitutional right

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concerning the sufficiency of evidence upon which a denial of parole is based. Whether the

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evidence is sufficient under California law is immaterial as a state prisoner can only be granted a

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writ of habeas corpus under 28 U.S.C. § 2254 for violations of the Constitution or laws of the

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United States. 28 U.S.C. § 2254(a).
For these reasons, petitioner’s application for a writ of habeas corpus will be summarily

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dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 6) is granted;

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2. Petitioner’s application for writ of habeas corpus is summarily dismissed;

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3. This case is closed; and

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4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. §

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2253.

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Dated: March 17, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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toma0025.par

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