Ramirez v. Welch

Filing 8

ORDER DISMISSING CASE; INSTRUCTIONS TO CLERK.Signed by Judge Richard Seeborg on 10/18/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 10/18/2011)

1
2
3

*E-Filed 10/18/11*

4
5
6
7

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
United States District Court
For the Northern District of California

8

SAN FRANCISCO DIVISION

11
12

15
16

ORDER OF DISMISSAL;

Petitioner,

13
14

No. C 11-3105 RS (PR)

ARTHUR NESTER RAMIREZ,

INSTRUCTIONS TO CLERK

v.
GREG LEWIS, Warden,
Respondent.
/

17
18
19

Petitioner has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in

20

which he alleges that the Board of Parole Hearings violated his right to due process when it

21

denied him parole in July 2008. Petitioner specifically claims that the Board’s decision fails

22

to comport with due process because (1) it was not supported by “some evidence” of current

23

dangerousness, a requirement under California law, (2) the parole panel was not impartial

24

and considered evidence from a confidential informant, and (3) the panel mistakenly

25

determined that he was a member of a gang.

26
27
28

The petition fails to state a claim upon which federal habeas relief can be granted. In
the parole context, a prisoner received constitutionally adequate process when “he was
No. C 11-3105 RS (PR)
ORDER OF DISMISSAL

1

allowed an opportunity to be heard and was provided a statement of the reasons why” parole

2

was denied. Swarthout v. Cooke, 131 S.Ct. 859, 862 (2011). “The Constitution does not

3

require more.” Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442

4

U.S. 1, 16 (1979). The Constitution does not even require an inquiry into whether

5

California’s procedures produced the result the evidence required. Cooke, 131 S.Ct. at 862.

6

Indeed, “it is no federal concern [ ] whether California’s ‘some evidence’ rule of judicial

7

review (a procedure beyond what the Constitution demands) was correctly applied.” Id. at

8

863. In the instant matter, the record shows that petitioner received at least the required

9

amount of process. Accordingly, the petition is DISMISSED.

United States District Court
For the Northern District of California

10

Petitioner’s motion to proceed in forma pauperis (Docket No. 7) is DENIED as moot,

11

petitioner having paid the filing fee. Petitioner’s motion for the appointment of counsel

12

(Docket No. 6) is DENIED. There is no right to counsel in habeas corpus actions. See

13

Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)

14

(2)(B) authorizes a district court to appoint counsel to represent a habeas petitioner whenever

15

“the court determines that the interests of justice so require” and such person is financially

16

unable to obtain representation. The decision to appoint counsel is within the discretion

17

of the district court, see Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), and should be

18

granted only when exceptional circumstances are present. See generally 1 J. Liebman & R.

19

Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383–86 (2d ed. 1994).

20

Petitioner has not shown that there are exceptional circumstances warranting appointment of

21

counsel.

22

The proper respondent in this action is Greg Lewis, the current Warden at Pelican Bay

23

State Prison, where petitioner is incarcerated, rather than the originally-named respondent,

24

Booker Welch, a member of petitioner’s parole board. See Fed. R. Civ. P. 25(d). Failure to

25

name the proper custodian, which here is Warden Lewis, the sole person who can produce

26

“the body” of the petitioner at this time, deprives federal courts of personal jurisdiction.

27

Ortiz-Sandoval v. Gomez, 81 F.3d 891, 896 (9th Cir. 1996). Accordingly, the Clerk shall

28
2

No. C 11-3105 RS (PR)
ORDER OF DISMISSAL

1
2

substitute Greg Lewis as the respondent in this action.
A certificate of appealability will not issue. Reasonable jurists would not “find the

3

district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

4

McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from

5

the Court of Appeals. The Clerk shall terminate Docket Nos. 6 & 7, enter judgment in favor

6

of respondent, and close the file.

7
8

IT IS SO ORDERED.
DATED: October 18, 2011
RICHARD SEEBORG
United States District Judge

9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

No. C 11-3105 RS (PR)
ORDER OF DISMISSAL