Bell v. Hartly

Filing 13

ORDER: The (Doc. 1 ) Petition for Writ of Habeas Corpus is denied. A certificate of appealability is denied. The Motion to Dismiss and the Motion to Excuse Late filing (Docs. 4 , 10 ) are denied as moot. The Clerk of the Court shall close this case. Signed by Judge William Q. Hayes on 4/18/2011. (All non-registered users served via U.S. Mail Service.) (mdc)

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1 Petitioner's objections. (ECF No. 10). On February 25, 2011, Petitioner filed a letter
2 addressed to the "Court Clerk." (ECF No. 12).
3 II.

Standard of Review

4

The duties of the district court in connection with a magistrate judge's report and

5 recommendation are set forth in Rule 72 ofthe Federal Rules ofCivil Procedure and 28 U.S.C.
6

§ 636(b)(1). The district court must "make a de novo determination of those portions of the

7 report ... to which objection is made," and "may accept, reject, or modifY, in whole or in part,
8 the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see also
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Us. v. Remsing, 874 F.2d 614,617 (9th Cir. 1989).

10 III.

Discussion

11

"An application for a writ of habeas corpus may be denied on the merits,

12 notwithstanding the failure of the applicant to exhaust the remedies available in the courts of
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the State." 28 U.S.C. § 2254(b)(2); see also Cassett v. Stewart, 406 F.3d 614,624 (9th Cir.

14 2005) ("[A] federal court may deny an unexhausted petition on the merits ... when it is
15 perfectly clear that the applicant does not raise even a colorable federal claim."); cf
16 Acosta-Huerta v. Estelle, 7 F.3d 139, 142 (9th Cir. 1982) (finding that the exhaustion

17 requirement is inapplicable as to claims which "clearly do not rise to the level of alleged
18

deprivations ofconstitutional rights"). Pursuant to 28 U.S.C. § 2254(b)(2), the Court declines

19 to adopt the Report and Recommendation and considers the Petition on the merits.
20

A California prisoner has a liberty interest in parole protected by the procedural

21

safeguards of the Due Process Clause of the Fourteenth Amendment. See Hayward v.

22

Marshall, 603 F.3d 546,561-64 (9th Cir. 2010) (en banc). Because the only federal right at

23

issue in this case is procedural, the relevant inquiry is whether Petitioner received due process.

24 See Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). "In the context of parole, ... the
25

procedures required are minimal." Id. The Supreme Court has "found that a prisoner ...

26 received adequate process when he was allowed an opportunity to be heard and was provided
27

a statement ofthe reasons why parole was denied. 'The Constitution,' [the Court] held, 'does

28 not require more.'" Id. (quoting Greenholtz v. Inmates of Neb. Penal and Correctional
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