Carlin v. Wong

Filing 59

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY (SI, COURT STAFF) (Filed on 11/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JAMES CARLIN,

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Petitioner,

United States District Court
For the Northern District of California

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No. C 06-4145 SI
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS AND DENYING
CERTIFICATE OF APPEALABILITY

v.
ROBERT WONG, Acting Warden,

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Respondent.

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Respondent’s motion to dismiss is scheduled for a hearing on November 18, 2011. Pursuant to

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Civil Local Rule 7-1(b), the Court determines that the matter is appropriate for resolution without oral

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argument and VACATES the hearing. For the reasons set forth below, the Court GRANTS respondent’s

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motion to dismiss and DENIES a certificate of appealability.

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DISCUSSION

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I.

Respondent’s motion to dismiss

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Petitioner’s sole remaining claim is that his due process rights were violated at his December

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15, 2003 parole consideration hearing because the Board improperly denied parole on a routine basis

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contrary to California Penal Code § 3041. Respondent has moved to dismiss this claim, contending that

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it is foreclosed by the Supreme Court’s decision in Swarthout v. Cooke, 562 U.S. ___, 131 S. Ct. 859

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(2011) (per curiam). The Court agrees.

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In Cooke, the Supreme Court held that a California prisoner receives adequate process when the

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Board of Prison Terms allows him an opportunity to be heard and provides him with a statement of the

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reasons why parole was denied. Cooke, 131 S. Ct. at 862. Petitioner’s claim that the Board improperly

denied parole on a routine basis would require the Court to look beyond the question of whether

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petitioner received constitutionally adequate procedures, and thus it is foreclosed by Cooke. See Cooke,

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131 S. Ct. at 863 (“Because the only federal right at issue is procedural, the relevant inquiry is what

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process Cooke and Clay received, not whether the state court decided the case correctly. . . . [T]he

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responsibility for assuring that the constitutionally adequate procedures governing California’s parole

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system are properly applied rests with California courts, and is no part of the Ninth Circuit’s business.”);

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see also Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011) (“[T]here is no substantive due process

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right created by California’s parole scheme. If the state affords the procedural protections required by

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Greenholtz and Cooke, that is the end of the matter for purposes of the Due Process Clause.”); Pearson

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United States District Court
For the Northern District of California

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v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) (“Cooke was unequivocal in holding that if an inmate

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seeking parole receives an opportunity to be heard, a notification of the reasons as to denial of parole,

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and access to their records in advance, that should be the beginning and the end of the inquiry into

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whether the inmate received due process.”) (internal quotation marks and alterations omitted).

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Accordingly, the Court GRANTS respondent’s motion to dismiss. Docket No. 54.

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II.

Certificate of appealability

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The Court denies a certificate of appealability. Petitioner has not made “a substantial showing

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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). After Swarthout v. Cooke, 131 S. Ct.

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859 (2011) (per curiam) and Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011), it cannot be said

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that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable

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or wrong.” Slack v. McDaniel, 529 U.S. 413, 484 (2000).

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IT IS SO ORDERED.

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Dated: November 9, 2011
SUSAN ILLSTON
United States District Judge

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