Tatum v. Grounds

Filing 6

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)

Tatum v. Grounds

Doc. 6

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 two pro se petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he claimed that two separate decisions by the Board of Parole Hearings finding him not suitable for parole in 2008 and 2009 violated his right to due process because they were not supported by sufficient evidence. See Tatum v. Grounds, No. 10-844-TEH (PR) (N. D. Cal. filed Feb. 26, 2010); Tatum v. Grounds, No. 10-4419-TEH (PR) (N. D. Cal. filed Sept. 30, 2010). Both matters have been briefed fully and stand v. RANDY GROUNDS, Warden, Respondent. / WILLIE TATUM, Petitioner, No. C-10-844 TEH (PR) No. C-10-4419 TEH (PR) ORDER DENYING PETITIONS FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATES OF APPEALABILITY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

submitted, ready for decision. The United States Supreme Court recently made clear that in the context of a federal habeas challenge to the denial of

Dockets.Justia.com

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parole, a prisoner subject to a parole statute similar to California's receives adequate process when BPH allows him an 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 in both actions shows Petitioner received at least this amount of process. Constitution does not require more. The

Swarthout, 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

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

petitions for writ of habeas corpus are DENIED. Further, as to both actions, Certificates of Appealability are DENIED. Cases. See Rule 11(a) of the Rules Governing Section 2254

Petitioner has not made "a substantial showing of the denial 28 U.S.C. § 2253(c)(2). Nor has

of a constitutional right."

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. of the Rules Governing Section 2254 Cases. // // 2 See Rule 11(a)

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

IT IS SO ORDERED.

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

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