Sutton v. Grounds

Filing 18

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DENYING MOTION SOR SUMMARY JUDGMENT. Signed by Judge Jeremy Fogel on 8/24/11. (dlm, COURT STAFF) (Filed on 8/31/2011)

1
2
3
4
5
6
7
8

NOT FOR CITATION

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

MARK A. SUTTON,
Petitioner,
13

vs.
14
15
16

No. C 10-02481 JF (PR)

)
)
)
)
)
)
)
)
)
)
)

12

R. GROUNDS, Warden,
Respondent.

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY; DENYING
MOTION FOR SUMMARY
JUDGMENT
(Docket No. 14)

17
18

Petitioner, a California inmate at the Correctional Training Facility in Soledad,

19

seeks petition in pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

20

challenging the 2009 denial of parole by the Board of Parole Hearings (the “Board”). The

21

Court found that the petition stated cognizable claims and ordered Respondent to show

22

cause why the petition should not be granted. Respondent filed an answer addressing the

23

merits of the petition, and Petitioner filed a traverse. For the reasons discussed below,

24

Court concludes that Petitioner is not entitled to relief based on the claims presented and

25

will deny the petition.

26
27

BACKGROUND

28

According to the petition, Petitioner was sentenced to 33 years to life in state
Order Denying Petition; Denying COA
P:\PRO-SE\SJ.JF\HC.10\Sutton02481_denyHC (parole).wpd

1

1

prison after a jury found him guilty of first degree murder with a firearm in Los Angeles

2

County Superior Court. Petitioner challenges the Board’s decision denying him parole

3

after an initial parole suitability hearing on July 10, 2009. Petitioner filed habeas

4

petitions in the state superior court, state appellate court, and the state supreme court, all

5

of which were denied as of April 14, 2010. Petitioner filed the instant federal petition on

6

May 14, 2010.1

7

DISCUSSION

8
9

As grounds for federal habeas relief, Petitioner alleges the following: 1) the Board

10

failed to fix Petitioner’s term as required by statute, violating his rights to due process and

11

equal protection; 2) the Board’s practice of denying parole in 99.25% of all initial parole

12

suitability hearings constitutes an illegal “sub rose policy”; 3) “the Board articulated no

13

nexus-evidence of current dangerousness or reasonable threat to public safety”; 4)

14

Petitioner’s decision not to discuss the facts of his commitment offense does not

15

constitute “some evidence” to deny parole; 5) Petitioner has served his minimum

16

sentence; 6) there was no evidence of any continued gang involvement to support the

17

decision to deny parole; and 7) the state court’s denial of his petition was improper

18

because it was based on facts that were not articulated by the Board. (Pet. at 2-3.)

19

Respondent asserts that Petitioner is not entitled to federal habeas relief because he

20

received all the procedural due process outlined in Greenholtz v. Inmates of the Neb.

21

Penal & Corr. Complex, 442 U.S. 1 (1979). (Ans. at 6; Docket No. 4.) Respondent also

22

argues on the merits that “some evidence” supports the Board’s decision. (Id. at 7-8.)

23

Earlier this year, the United States Supreme Court determined that for the purposes

24

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

25

procedural protections in connection with a parole suitability determination. Swarthout v.

26
27
28

1

The matter was transferred to this Court as having proper jurisdiction on June 2,
2010, from the United States District Court for the Southern District of California. (See
Docket No. 3.)
Order Denying Petition; Denying COA
P:\PRO-SE\SJ.JF\HC.10\Sutton02481_denyHC (parole).wpd

2

1

Cooke, No. 10-333, slip op. 4-5 (U.S. Jan. 24, 2011). The procedural protections to

2

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

3

Amendment are limited to an opportunity to be heard and a statement of the reasons why

4

parole was denied. Id. Here, as Respondent correctly points out, Petitioner makes no

5

allegation that the Board failed to provide at least these minimum procedural protections

6

in its decision to deny parole; the Constitution does not require more. Id. at 5.

7

Whether the Board’s decision was supported by some reliable evidence of current

8

dangerousness is irrelevant in federal habeas. The Supreme Court has made clear that “it

9

is no federal concern... whether California’s ‘some evidence’ rule of judicial review (a

10

procedure beyond what the Constitution demands) was correctly applied.” Id. at 6. In

11

light of the Supreme Court’s determination that due process does not require that there be

12

any amount of evidence to support the parole denial, the petition fails to state a

13

cognizable claim for relief.

14

CONCLUSION

15

The Court concludes that Petitioner has failed to show a violation of his federal

16
17

constitutional rights in the underlying state court proceedings and parole hearing.

18

Accordingly, the petition for writ of habeas corpus is DENIED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a certificate of

19
20

appealability (“COA”) under 28 U.S.C. § 2253(c) is DENIED because it cannot be said

21

that “reasonable jurists” would find the district court’s assessment of the constitution

22

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

23

Petitioner’s motion for summary judgment is DENIED as moot. (Docket No. 14.)

24

This order terminates Docket No. 14.

25

IT IS SO ORDERED.

26

Dated:

8/24/11

JEREMY FOGEL
United States District Judge

27
28
Order Denying Petition; Denying COA
P:\PRO-SE\SJ.JF\HC.10\Sutton02481_denyHC (parole).wpd

3

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

MARK A SUTTON,

Case Number: CV10-02481 JF

Petitioner,

CERTIFICATE OF SERVICE

v.
R GROUNDS, Warden,
Respondent.

/

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 8/31/11
, 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.

Mark A Sutton E-20095
CTF Central
PO Box 689
Soledad, CA 93960
Dated:

8/31/11
Richard W. Wieking, Clerk