Bodine v. Grounds et al

Filing 4

ORDER DISMISSING CASE. Signed by Judge William Alsup on 5/27/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 5/27/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 HARRY BODINE, Petitioner, ORDER OF DISMISSAL v. 11 For the Northern District of California United States District Court 10 12 No. C 11-2122 WHA (PR) RANDY GROUNDS, Respondent. 13 / 14 INTRODUCTION 15 Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 16 17 corpus pursuant to 28 U.S.C. 2254. The petition challenges the denial of parole by the 18 California Board of Parole Hearings (“Board”). ANALYSIS 19 20 A. STANDARD OF REVIEW 21 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 22 custody pursuant to the judgment of a State court only on the ground that he is in custody in 23 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 24 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 25 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 26 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 27 court must “specify all the grounds for relief which are available to the petitioner ... and shall 28 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 1 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 2 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 3 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 4 688, 689 (1st Cir. 1970)). 5 B. 6 LEGAL CLAIMS Petitioner claims that the Board violated his protected liberty interest in parole because that he would be suitable for parole. For purposes of federal habeas review, a California 9 prisoner is entitled to only “minimal” procedural protections in connection with a parole 10 suitability determination. Swarthout v Cooke, 131 S.Ct. 859, 863 (2011). The procedural 11 For the Northern District of California the evidence warranted a finding that he would not pose a danger to the public if released and 8 United States District Court 7 protections to which the prisoner is entitled under the Due Process Clause of the Fourteenth 12 Amendment to the U.S. Constitution are limited to an opportunity to be heard and a statement 13 of the reasons why parole was denied. Id. at 862. Petitioner does not dispute that he received 14 an opportunity to be heard and a statement of the reasons parole was denied. The constitution 15 does not require more. Ibid. The court in Swarthout explained that no Supreme Court case 16 “supports converting California’s ‘some evidence’ rule into a substantive federal requirement.” 17 Ibid. It is simply irrelevant in federal habeas review "whether California's 'some evidence' rule 18 of judicial review (a procedure beyond what the Constitution demands) was correctly applied." 19 Id. at 863. In light of the Supreme Court’s determination that due process does not require that 20 there be any amount of evidence to support the parole denial, petitioner’s claim fails to state a 21 cognizable basis for federal habeas relief. 22 CONCLUSION 23 In light of the foregoing, the petition for a writ of habeas corpus is DISMISSED. 24 Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to 25 rule on whether a petitioner is entitled to a certificate of appealability in the same order in which 26 the petition is dismissed. Petitioner has failed to make a substantial showing that a reasonable 27 // 28 // 2 1 jurist would find this court’s denial of his claim debatable or wrong. Slack v. McDaniel, 529 2 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted in this case. 3 The clerk shall enter judgment and close the file. 4 IT IS SO ORDERED. 5 Dated: May 27 , 2011. 6 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 G:\PRO-SE\WHA\HC.11\BODINE2122.DSM.wpd 28 3

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