Johnson v. Cate

Filing 6

ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS. To proceed in form pauperis is granted. Signed by Judge Charles R. Breyer on 5/6/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 5/10/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DEMIAN E. JOHNSON, C-68641,
Petitioner,

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vs.
A. HEDGPETH, Warden,
Respondent(s).

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No. C 11-1976 CRB (PR)
ORDER DISMISSING
PETITION FOR A WRIT OF
HABEAS CORPUS
(Docket # 5)

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Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254

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challenging the California Board of Parole Hearings' (BPH) February 10, 2009

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decision to deny him parole. In a nutshell, petitioner claims that the BPH's

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decision does not comport with due process because it is not supported by some

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evidence demonstrating that he poses a current unreasonable threat to the public.

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Petitioner also seeks to proceed in forma pauperis (docket # 5), which
based solely on his affidavit of poverty, is granted.
In the context of parole, a prisoner subject to a parole statute similar to

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California's receives adequate process when he is allowed an opportunity to be

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heard and is provided with a statement of the reasons why parole was denied.

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Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). The petition and attachment

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thereto show petitioner received at least this amount of process. The Constitution

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does not require more. Id.

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Whether the BHP's decision was supported by some evidence of current

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dangerousness is irrelevant in federal habeas. The Supreme Court has made clear

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that "it is no federal concern . . . whether California's 'some evidence' rule of

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judicial review (a procedure beyond what the Constitution demands) was

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correctly applied." Id. at 863.
For the foregoing reasons, the petition for a writ of habeas corpus is

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DISMISSED. And pursuant to Rule 11 of the Rules Governing Section 2254

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Cases, a certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED

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because it cannot be said that "reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong." Slack v. McDaniel,

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529 U.S. 473, 484 (2000).
The clerk shall enter judgment in accordance with this order and close the

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file.

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SO ORDERED.

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DATED:

May 6, 2011
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.11\Johnson, D1.dismissal.wpd

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