Leiva v. Grounds

Filing 3

ORDER DISMISSING CASE and GRANTING Leave to Proceed In Forma Pauperis. Signed by Judge William Alsup on 06/30/11. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 7/1/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAUL LEIVA,
Petitioner,

ORDER OF DISMISSAL;
GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS

v.

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For the Northern District of California

United States District Court

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No. C 11-3076 WHA (PR)

RANDY GROUNDS,
Respondent.

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(Docket No. 2)
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INTRODUCTION

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Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. 2254. The petition challenges the denial of parole by the

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California Board of Parole Hearings (“Board”). Petitioner also seeks leave to proceed in forma

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pauperis.
ANALYSIS

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A.

STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

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court must “specify all the grounds for relief which are available to the petitioner ... and shall

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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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B.

LEGAL CLAIMS

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Petitioner claims that the denial of parole violated his right to due process because the

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Board’s decision was arbitrary and supported by no evidence. For purposes of federal habeas

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review, a California prisoner is entitled to only “minimal” procedural protections in connection
with a parole suitability determination. Swarthout v Cooke, 131 S.Ct. 859, 863 (2011). The

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For the Northern District of California

United States District Court

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procedural protections to which the prisoner is entitled under the Due Process Clause of the

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Fourteenth Amendment to the U.S. Constitution are limited to an opportunity to be heard and a

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statement of the reasons why parole was denied. Id. at 862. Petitioner does not dispute that he

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received an opportunity to be heard and a statement of the reasons parole was denied. The

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constitution does not require more. Ibid. The court in Swarthout explained that no Supreme

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Court case “supports converting California’s ‘some evidence’ rule into a substantive federal

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requirement.” Ibid. It is simply irrelevant in federal habeas review "whether California's 'some

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evidence' rule of judicial review (a procedure beyond what the Constitution demands) was

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correctly applied." Id. at 863. As the Supreme Court has determined that due process does not

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require that there be any amount of evidence to support the parole denial, petitioner’s claim that

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the denial of parole was supported by no evidence fails to establish grounds for habeas relief.

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Petitioner contends that his due process rights were violated by the Board’s failure to set

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a term of years for him to serve, something he contends is required by California law. He is

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wrong that California law requires the Board to set a the term of years for prisoners sentenced to

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indeterminate terms. See In re Dannenberg, 34 Cal. 4th 1061, 1082-83 (2005). That is not

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required until the Board finds the prisoner suitable for parole. Ibid. Here the Board found

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petitioner not suitable for parole, so under California law was not required to set a term. There

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thus could be no due process right to such a term-setting arising from California law, and there
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is no Supreme Court case recognizing a federal due process right to it arising directly from the

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Due Process Clause. Consequently, petitioner’s second claim also fails to set forth grounds for

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federal habeas relief.

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CONCLUSION

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In light of the foregoing, the petition for a writ of habeas corpus is DISMISSED.

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Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to

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rule on whether a petitioner is entitled to a certificate of appealability in the same order in

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which the petition is dismissed. Petitioner has failed to make a substantial showing that a

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reasonable jurist would find this court’s denial of his claim debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted

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For the Northern District of California

United States District Court

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in this case.

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Due to petitioner’s lack of funds, his application to proceed in forma pauperis (docket
number 2) is GRANTED.

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: June

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, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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