Palomar v. Athans et al

Filing 6

ORDER of Dismissal. Signed by Judge Edward M. Chen on 4/11/2013. (Attachments: # 1 Certificate of Service)(emcsec, COURT STAFF) (Filed on 4/11/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GEORGE RUIZ PALOMAR,

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Petitioner,
v.

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For the Northern District of California

United States District Court

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No. C-13-1503 EMC (pr)

T. ATHANS; et al.,

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ORDER OF DISMISSAL

Respondents.
___________________________________/

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Petitioner filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. §

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2254. In his petition, he claims that the November 1, 2011 determination by the Board of Parole

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Hearings (“BPH”) that he was not suitable for parole denied him due process because it was based

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on incorrect information in psychological reports and there was not some evidence of future

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dangerousness.

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A “federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground

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that he is in custody in violation of the Constitution or laws or treaties of the United States.’”

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Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (citations omitted.) The court may not grant habeas

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relief for state law errors. Id.

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For purposes of federal habeas review, a California prisoner is entitled to only “minimal”

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procedural protections in connection with a parole suitability determination. The procedural

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

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

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reasons why parole was denied. See Swarthout v. Cooke, 131 S. Ct. at 862. The Court explained

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that no Supreme Court case “supports converting California’s ‘some evidence’ rule into a

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substantive federal requirement,” id., and the Ninth Circuit erred in holding otherwise.

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In light of the Supreme Court’s determination that the constitutionally-mandated procedural

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protections do not include a requirement that the parole denial decision be supported by some

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evidence (or any other quantum of evidence), the petition must be denied. The exhibits to the

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petition show that Petitioner received the procedural protections to which he was entitled under

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Supreme Court cases: he had an opportunity to be heard at the parole hearing and received a

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statement of the reasons why parole was denied. See Docket # 1, pp. 143-193.

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A certificate of appealability will not issue because Petitioner has not made “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This is not a case in which

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For the Northern District of California

United States District Court

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“reasonable jurists would find the district court’s assessment of the constitutional claims debatable

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or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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For the foregoing reasons, the petition for writ of habeas corpus is DISMISSED.

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Petitioner’s in forma pauperis is GRANTED. (Docket # 2.)

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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: April 11, 2013
_________________________
EDWARD M. CHEN
United States District Judge

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