Porras v. Noll

Filing 19

ORDER by Judge Claudia Wilken DENYING 8 MOTION FOR RECONSIDERATION OR, ALTERNATIVELY, REQUEST FOR CERTIFICATE OF APPEALABILITY; DENYING 12 LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL; DENYING 18 MOTION FOR CLARIFICATION. (ndr, COURT STAFF) (Filed on 9/8/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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NEVILLE PORRAS,

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No. C 09-04936 CW (PR)

Petitioner,
v.
RANDY GROUNDS, Warden,

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Respondent.

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ORDER DENYING MOTION FOR
RECONSIDERATION OR,
ALTERNATIVELY, REQUEST FOR
CERTIFICATE OF APPEALABILITY;
DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL;
DENYING MOTION FOR
CLARIFICATION

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United States District Court
For the Northern District of California

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Petitioner filed the instant pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 based upon Governor
Arnold Schwarzenegger's reversal of the decision by the Board of
Parole Hearings (Board) finding Petitioner suitable for parole.
On February 15, 2011, the Court denied the petition, finding as
follows:
Petitioner claims that the Governor's decision violated
his right to due process because it was not based on
"some evidence" that he currently poses an unreasonable
risk to public safety, a requirement under California
law. "There is no right under the Federal Constitution
to be conditionally released before the expiration of a
valid sentence, and the States are under no duty to offer
parole to their prisoners." Greenholtz v. Inmates of
Neb. Penal and Correctional Complex, 442 U.S. 1, 7
(1979). "When, however, a State creates a liberty
interest, the Due Process Clause requires fair procedures
for its vindication -- and federal courts will review the
application of those constitutionally required
procedures." Swarthout v. Cooke, No. 10-333, slip op. at
4 (U.S. Jan. 24, 2011). The procedures required are
"minimal." Id. A prisoner receives adequate process
when "he was allowed an opportunity to be heard and was
provided a statement of the reasons why parole was
denied." Id. at 4-5. "The Constitution does not require
more." Greenholtz, 442 U.S. at 16.

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In the instant matter, Petitioner received at least the
required amount of process. The record shows that he was
allowed an opportunity to be heard at his parole hearing
and that he was notified of the reasons the Governor
denied him parole. Having found that Petitioner received
these procedural requirements, this federal habeas
court's inquiry is at an end. Cooke, slip op. at 5.
Petitioner's claim that the Governor's decision did not
comply with California's "some evidence" rule of judicial
review is of "no federal concern." Id. at 6.
Accordingly, the petition is DENIED.
Order Denying Petition at 3:6-4:6.
By that same order, the Court denied a certificate of
appealability.

Thereafter, Petitioner filed a notice of appeal and

United States District Court
For the Northern District of California

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a motion for reconsideration or, alternatively, request for a

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certificate of appealability.

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dismissed the appeal for lack of jurisdiction because the notice of

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appeal was untimely.

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dismissal is without prejudice to the filing of a timely notice of

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appeal from the district court’s decision on appellant’s pending

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motion for reconsideration."

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Cir. July 11, 2011.)

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On July 11, 2011, the Ninth Circuit

In so doing, the Ninth Circuit stated: "This

Porras v. Grounds, No. 11-15827 (9th

Petitioner moves for reconsideration of the Court's decision

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denying the instant petition by arguing that the Supreme Court

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wrongly decided Cooke.

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Court's decision does not provide a basis for the Court to set

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aside the Order denying his habeas petition or the judgment

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thereon.

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Petitioner's disagreement with the Supreme

Petitioner's renewed request for a certificate of

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appealability also is without merit.

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clarified: "Cooke was unequivocal in holding that if an inmate

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As the Ninth Circuit recently

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seeking parole receives an opportunity to be heard, a notification

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of the reasons as to denial of parole, and access to their records

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in advance, '[t]hat should . . . be [] the beginning and the end of

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[the] inquiry into whether [the inmate] received due process.'"

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Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) (quoting

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Cooke, 131 S. Ct. at 862).

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prisoner is challenging the decision of the Governor or of the

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Board.

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Cir. June 6, 2011) (finding due process satisfied where prisoner

Such rationale applies whether the

Styre v. Adams, ___ F.3d. ___, 2011 WL 2176465, at *1 (9th

United States District Court
For the Northern District of California

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did not dispute he received procedural safeguards at Board hearing

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and Governor reversed Board's grant of parole without conducting

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separate hearing).

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he was provided with the above procedural safeguards at his

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hearing, and the record shows that he was, the Court finds that

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reasonable jurists would not "find the district court's assessment

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of the constitutional claims debatable or wrong."

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McDaniel, 529 U.S. 473, 484 (2000).

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Because Petitioner herein has not disputed that

Slack v.

Accordingly, Petitioner's motion for reconsideration or,

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alternatively, request for a certificate of appealability is

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DENIED.

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pauperis on appeal is DENIED.

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for Clarification, requesting the status of his Motion for

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Reconsideration.

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moot.

Additionally, Petitioner's motion to proceed in forma
Petitioner has since filed a Motion

The Motion for Clarification is now DENIED as

This Order terminates Docket nos. 8, 12 and 18.

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IT IS SO ORDERED.
Dated: 9/8/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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NEVILLE PORRAS,
Case Number: CV09-04936 CW

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Plaintiff,
CERTIFICATE OF SERVICE

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v.
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C. NOLL et al,
Defendant.
/

United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 8, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.

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Neville Porras E-37606
Correctional Traning Facility
Z-118-U
P.O. Box 689
Soledad, CA 93960-0689
Dated: September 8, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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