Agrio v. Marshall et al

Filing 16

ORDER Denying Petition for Writ of Habeas Corpus, Request for evidentiary hearing, Request for appointment of counsel. Signed by Magistrate Judge William McCurine, Jr on 7/13/11.(All non-registered users served via U.S. Mail Service)(lao) Modified text on 7/13/2011 (lao).

To satisfY procedural due process, the Constitution requires prisoners have, at minimum,
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an opportunity to be heard and a statement of the reasons why the Board denied parole. Swarthout,

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131 S. Ct. at 862 [citing Greenholtz v. Inmates ofNeb. Penal and Carr. Complex, 442 U.S. 1, 16

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(1979)]. In Swarthout, the Supreme Court found prisoners received adequate due process when

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"[t]hey were allowed to speak at their parole hearings and to contest the evidence against them,

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were afforded access to their records in advance, and were notified as to the reasons why parole

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was denied." Id. at 862.

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Here, Agrio claims the Board denied parole based on insufficient evidence. (Pet. at to.)

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Agrio contends the Board based its denial on the commitment offense and his lack of insight into

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the commitment offense, which are immutable factors that do not predict current dangerousness.

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(Id.) However, Agrio has not alleged the Board denied him procedural due process. (See id. at 7­

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15; Traverse 5-11.) Indeed, the record indicates Agrio received an opportunity to be heard and a

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statement explaining the Board's reasons for denial. Agrio had counsel represent him during his

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parole hearing and received copies of the documents the Board reviewed. (Transcript at 2, 6.)

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During the hearing, Agrio addressed the Board regarding the commitment offense, future plans if

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paroled, and his remorse. (Id. at 17-25,28,37-40.) Agrio addressed his wife's alcohol addiction,

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how he ignored signs she needed help, and steps he has taken while in prison to improve his anger.

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(Id. at 18.) Lastly, Agrio and his attorney made closing statements advocating his release. (Id. at

19 65-71; 72-75.) After reviewing Agrio's case, the Board explained to Agrio and his attorney why it
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denied Agrio parole. (ld. at 77-83.)

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Agrio received exactly the same procedural due process the prisoners in Swarthout

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received. First, Agrio received a copy of his file containing documents the Board reviewed. (Id. at

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6.) Second, Agrio spoke throughout his parole hearing and addressed various parole factors and

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questions from the Board, including the commitment offense and his past and present attitudes

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toward the crime. (Id. at 17-26.) Finally, Agrio received a statement of reasons why the Board

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denied parole. (ld. at 77-83.)

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Agrio received the required procedural due process set forth in Swarthout, and therefore,
the Court DENIES Agrio's Petition for Writ of Habeas Corpus.

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