Perez v. Curry

Filing 16

ORDER Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability. Signed by Judge Thelton E. Henderson on 03/04/2011. (Attachments: # 1 Certificate of Service)(tmi, COURT STAFF) (Filed on 3/7/2011)

Perez v. Curry

Doc. 16

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he claimed that a decision by the Board of Parole Hearings to find him not suitable for parole violated his right to due process because it was not supported by sufficient evidence. Doc. #1. Respondent has filed an v. BEN CURRY, Warden, Respondent. / GUSTAVO PEREZ, Petitioner, No. C-09-3843 TEH (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

answer and supplemental answer and Petitioner has filed a traverse and supplemental traverse. Doc. ## 7, 12, 14 & 15.

The United States Supreme Court recently made clear that in the context of a federal habeas challenge to the denial of parole, a prisoner subject to a parole statute similar to California's receives adequate process when BPH allows him an

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

opportunity to be heard and provides him with a statement of the reasons why parole was denied. Swarthout v. Cooke, 131 S.Ct. 859,

862­63 (2011) (per curiam). Here, the record shows Petitioner received at least this amount of process. id. at 115­125. 131 S.Ct at 862. The Court also made clear that whether BPH's decision was supported by some evidence of current dangerousness is irrelevant in federal habeas: "it is no federal concern . . . whether See Doc. #1 at 48­125; Swarthout,

The Constitution does not require more.

California's `some evidence' rule of judicial review (a procedure beyond what the Constitution demands) was correctly applied." Swarthout, 131 S.Ct at 863. Accordingly, the instant federal

petition for a writ of habeas corpus is DENIED. Further, a Certificate of Appealability is DENIED. Rule 11(a) of the Rules Governing Section 2254 Cases. has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Nor has Petitioner See

Petitioner

demonstrated that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not

appeal the denial of a Certificate of Appealability in this Court but may seek a certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure. Rules Governing Section 2254 Cases. // // // 2 See Rule 11(a) of the

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED

The Clerk shall terminate any pending motions as moot, enter judgment in favor of Respondent and close the file.

IT IS SO ORDERED.

03/04/2011 THELTON E. HENDERSON United States District Judge

G:\PRO-SE\TEH\HC.09\Perez-09-3843-bph-deny-post cooke.wpd

3