Johnson v. Martel

Filing 3

ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 11/13/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/13/2012)

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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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JOHN M. JOHNSON,
Petitioner,

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vs.

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ORDER DISMISSING
PETITION AND DENYING
CERTIFICATE OF
APPEALABILITY

MICHAEL MARTEL, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 12-0964 PJH (PR)

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This is a habeas corpus action filed pro se by a California prisoner currently

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incarcerated at San Quentin State Prison. The petition attacks denial of parole, so venue is

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proper in this district, which is where petitioner is confined. See 28 U.S.C. § 2241(d).

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BACKGROUND

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In 1983 petitioner was convicted of murder. He was sentenced to prison for fifteen

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years to life on the murder conviction. On June 22, 2010, the Board of Parole Hearings

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granted parole to petitioner. However, on November 19, 2010, the governor reversed the

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grant of parole, which petitioner now challenges. He claims to have exhausted these

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claims by way of state habeas petitions.
DISCUSSION

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A.

Standard of Review
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

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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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pursuant to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject

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to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102,

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1108 (9th Cir. 1996) (Schroeder, J., concurring).
B.

Legal Claims

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For the Northern District of California

United States District Court

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As his sole ground for federal habeas relief, petitioner generally asserts that the

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governor relied on improper factors such as the immutable and unchanging facts of the

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crime, the fact that petitioner did not have a job offer and that the governor failed to follow

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state regulations.

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The United States Supreme Court has recently held that “[i]n the context of parole . .

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

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

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does 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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Petitioner is essentially challenging the evidence relied on by the governor in

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reversing the parole grant, not the procedural protections he received. Pursuant to

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Swarthout this claim is foreclosed on federal habeas review. Moreover, the Ninth Circuit

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held that the governor is not required to hold a second parole suitability hearing before

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reversing the Board's determination that the prisoner was suitable for parole. Styre v.

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Adams, 645 F.3d 1106 (9th Cir. 2011). Therefore, this petition is dismissed.

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CONCLUSION

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Leave to proceed in forma pauperis (docket # 2) is GRANTED.

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For the reasons discussed above, petitioner cannot obtain relief on any of his claims.

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The petition therefore is DISMISSED. Furthermore, because reasonable jurists would not

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find the result here debatable, a certificate of appealability (“COA”) is DENIED. See Slack

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v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for COA). The clerk shall close the

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file.

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IT IS SO ORDERED.

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Dated: November 13, 2012.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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G:\PRO-SE\PJH\HC.12\Johnson0964.dismiss.wpd

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