Valdivia v. Ayers

Filing 11

ORDER TO REOPEN CASE; DENIAL OF HABEAS PETITION AND DENIAL OF CERTIFICATE OF APPEALABILITY. Signed by Judge Phyllis J. Hamilton on 5/1/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 5/1/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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NOEL VALDIVIA,
Petitioner,

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ORDER TO REOPEN CASE;
DENIAL OF HABEAS
PETITION AND DENIAL OF
CERTIFICATE OF
APPEALABILITY

vs.
ROBERT L. AYERS, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 08-3225 PJH (PR)

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This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. 2254.

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The petition is directed to a denial of parole. This case was stayed as the Eastern District

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of California had granted a petition filed by petitioner seeking parole in an earlier case

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which was appealed to the Ninth Circuit and had been pending. The Ninth Circuit reversed

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the Eastern District’s order granting parole in light of Swarthout v. Cooke, 131 S. Ct. 859

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(2011). See Valdivia v. Brown, 08-15650.1

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BACKGROUND
In 1981 petitioner pled guilty in Los Angeles Superior Court to first degree murder.
He received a sentence of twenty-five years to life in prison.
DISCUSSION

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As grounds for federal habeas relief, petitioner asserts that: (1) there was not “some

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evidence” to support the denial of parole; (2) the Board violated his due process and Eighth

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Amendment rights by using characteristics of the offense both as grounds to deny parole

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and to not schedule another hearing for two years; (3) the Board’s criteria for parole release

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are unconstitutionally vague; (4) the Board is not impartial; and (5) the denial was a

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It appears petitioner has since been paroled.

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violation of his plea bargain.
On January 24, 2011, the United States Supreme Court issued Swarthout v. Cooke,

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131 S. Ct. 859 (2011). The Supreme Court held that “[i]n the context of parole . . . the

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procedures required [by the due process clause] are minimal . . . an opportunity to be heard

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and . . . a statement of the reasons why parole was denied . . . ‘[t]he Constitution . . . does

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not require more.” Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). As long as the

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petitioner received at least that much process, the federal court's habeas review is at an

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end. Id. at 862. That is, there is no constitutional right to “individual consideration.”

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Thus, petitioner’s claims involving the “some evidence” that the Board relied on or
the reliance on his commitment offense are not cognizable on federal habeas review.

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For the Northern District of California

United States District Court

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Similarly, petitioner’s conclusory claims that the Board violated his due process rights or

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their regulations are vague do not state a federal claim, as he has raised no arguments

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concerning the basic procedures he is entitled to as described in Swarthout, and the court

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cannot review the evidence relied upon by the Board. Petitioner has presented no support

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for his allegation that the Board was biased, nor is there any merit to his claim that his plea

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bargain was violated by the denial of parole. Petitioner was sentenced to twenty-five years

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to life in prison, so only retained the possibility of parole. Petitioner's sentence of twenty-

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five years with the possibility of parole carries no guaranteed parole date, and carries with it

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the potential that he could serve the entire term. See Pearson v. Muntz, 639 F.3d 1185,

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1187 (9th Cir. 2011) (explaining that prisoners serving indeterminate life prison sentences

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[i.e., those whose life sentences do not include ‘without the possibility of parole’] may serve

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up to life in prison, but may be considered for parole after serving minimum terms of

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confinement). For all these reasons, the petition is denied.

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CONCLUSION

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1. The stay in this case is lifted and the case is REOPENED.

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2. The petition is DENIED. Furthermore, because reasonable jurists would not find

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the result here debatable given the clear controlling Supreme Court authority, a certificate

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of appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)
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(standard for COA). The clerk shall close the file.
IT IS SO ORDERED.
Dated: May 1, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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G:\PRO-SE\PJH\HC.08\Valdivia3225.HC.wpd

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For the Northern District of California

United States District Court

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