Wallach v. Neotti et al

Filing 29

ORDER Adopting Report and Recommendation Over Objections and Dismissing Petition with Prejudice. Respondent's motion to dismiss is granted. The Court denies a certificate of appealability. Signed by Judge Roger T. Benitez on 12/20/2011.(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOEL WALLACH,

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CASE NO. 10cv1237 BEN (NLS)
Petitioner,

ORDER ADOPTING REPORT
AND RECOMMENDATION OVER
OBJECTIONS AND DISMISSING
PETITION WITH PREJUDICE

vs.
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GEORGE NEOTTI, Warden,
[Dkt. Nos. 19, 26.]

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Respondent.

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Joel Wallach filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254

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contending that his Due Process rights were violated when he was denied parole by the Board of

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Parole Hearings. Respondent filed a motion to dismiss the Petition for failing to allege a

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cognizable federal claim. (Dkt. No. 19.) Magistrate Judge Nita L. Stormes issued a thoughtful and

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thorough Report and Recommendation recommending the motion to dismiss be GRANTED

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because Petitioner cannot state a claim that his federal due process rights were violated when the

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Board denied Petitioner parole. (Dkt. No. 26.) Petitioner filed Objections. (Dkt. No. 27.)

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Respondent filed a Reply. (Dkt. No. 28.) Having reviewed the matter de novo and for the reasons

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that follow, the Report and Recommendation is ADOPTED, Respondent’s motion to dismiss is

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GRANTED, and the Petition is DISMISSED with prejudice.

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DISCUSSION
Petitioner challenges the Board’s October 16, 2008 decision denying him parole. Petitioner
disputes: (1) the Report’s finding that Petitioner’s claim is precluded by Swarthout v. Cooke, 131
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10cv1237

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S. Ct. 859 (2011) and (2) objects to the Report’s finding that Petitioner had an opportunity to be

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heard at his parole hearing.

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As accurately outlined in the Report, federal habeas relief may only be granted when State

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court proceedings “resulted in a decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the United

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States; . . . or resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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I.

Swarthout v. Cooke

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Petitioner argues that the United States Supreme Court’s decision in Swarthout v. Cooke

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left open whether the Due Process Clause requires “some evidence” of future dangerousness to

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deny parole to a California prisoner. The Court disagrees.

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Both Swarthout v. Cook and the Ninth Circuit’s decision in Pearson v. Muntz, 639 F.3d

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1185 (2011) make clear that “some evidence” of future dangerousness is not required under the

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Due Process Clause. Swarthout, 131 S. Ct. at 863 (“The short of the matter is that the

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responsibility for assuring that the constitutionally adequate procedures governing California’s

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parole system are properly applied rests with California courts, and is no part of the Ninth Circuit’s

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business.”); Pearson, 639 F.3d at 1191 (“[T]he protections to which a California inmate is entitled

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to prior to a denial of parole do not include a showing of some evidence of future

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dangerousness.”).

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While there is a state created liberty interest in parole in California, there is “no right under

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the Federal Constitution to be conditionally released before the expiration of a valid sentence.”

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Swarthout, 131 S. Ct. at 862. There is “no federal concern here whether California’s ‘some

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evidence’ rule of judicial review (a procedure beyond what the Constitution demands) were

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correctly applied. Id. at 863 (emphasis added). Due Process only requires that Petitioner be

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“allowed an opportunity to be heard and . . . provided a statement of the reasons why parole was

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denied.” Id. at 862; Pearson, 639 F.3d at 1191; Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir.

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2011). Some evidence of future dangerousness is not required to comply with Due Process.

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10cv1237

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II.

Opportunity to Be Heard

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Petitioner claims that he was denied an opportunity to be heard at his parole hearing

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concerning his use of medication, one basis for the Board’s denial of parole. However, Petitioner

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had ample opportunity to address his suitability for parole during his parole hearing. As noted by

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Respondent in the Reply to Petitioner’s Objections, Petitioner was asked numerous questions about

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his use of medication, its role in his commitment offense, and his failure to take advantage of

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substance abuse programs. This concern was also raised in Petitioner’s psychological evaluation.

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Additionally, even if the Board had not inquired about this particular issue, Petitioner fails to cite

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the Court to any authority requiring the Board to provide Petitioner an opportunity to rebut every

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specific piece of information in an inmate’s file that the Board might rely on in assessing parole

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suitability.

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III.

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Certificate of Appealability
“The district court must issue or deny a certificate of appealability when it enters a final

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order adverse to the applicant.” Rule 11 foll. 28 U.S.C. § 2254. In this case, the Court finds that

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Petitioner has not made a substantial showing of the denial of a constitutional right, the issues are

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not debatable among jurists of reason, and a court could not resolve the issues in a different

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manner. The questions are also not adequate to deserve encouragement to proceed further.

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Petitioner has failed to state a cognizable federal claim. Accordingly, the Court DENIES a

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certificate of appealability.

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CONCLUSION
Having conducted a de novo review, the Report and Recommendation is ADOPTED over

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Petitioner’s Objections, Respondent’s motion to dismiss is GRANTED, and the Petition is

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DISMISSED with prejudice. The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED: December 20, 2011

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Hon. Roger T. Benitez
United States District Judge

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