Green v. The State of California Board of Parole Hearings
Filing
25
ORDER (1) ADOPTING 16 REPORT AND RECOMMENDATION and (2) granting 9 Motion to Dismiss: the Court ADOPTS the R&R in full. Respondent's motion to dismiss is GRANTED. Petitioner's petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE to Petitioner's bringing his claim under 42 U.S.C. § 1983. Signed by Judge Janis L. Sammartino on 1/23/12.(All non-registered users served via U.S. Mail Service)(lmt)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
SOUTHERN DISTRICT OF CALIFORNIA
8
9
DONALD GREEN,
10
CASE NO. 10CV2516 JLS (JMA)
Plaintiff,
ORDER (1) ADOPTING REPORT
AND RECOMMENDATION AND
(2) GRANTING MOTION TO
DISMISS
vs.
11
12
THE STATE OF CALIFORNIA BOARD OF
PAROLE HEARINGS; MATTHEW CATE,
(ECF Nos. 9, 16)
13
Defendants.
14
15
Presently before the Court is Respondent Matthew Cate’s1 (“Respondent”) motion to
16
dismiss Petitioner Donald Green’s (“Petitioner”) petition for writ of habeas corpus. (Mot. to
17
Dismiss, ECF No. 9) Also before the Court are Magistrate Judge Jan M. Adler’s Report and
18
Recommendation (“R&R”) recommending the Court grant Respondent’s motion and dismiss the
19
petition without prejudice to Petitioner bringing his claim under 42 U.S.C. § 1983, (R&R, ECF
20
No. 16), and Petitioner’s objections to the R&R, (Obj., ECF No. 21).2
21
22
1
23
24
25
26
27
28
On July 26, 2011, Matthew Cate, Secretary of the California Department of Corrections and
Rehabilitation, was substituted as Respondent in place of “L.S. McEwen.” (Order, ECF No. 17)
2
Magistrate Judge Adler ordered the parties to file any objections to the R&R “not later than
August 16, 2011.” (R&R 6, ECF No. 16) On August 29, 2011, having received no objections, the
Court adopted Magistrate Judge Adler’s R&R, granted Respondent’s motion to dismiss, and dismissed
Petitioner’s habeas petition without prejudice to Petitioner bringing his claim under 42 U.S.C. § 1983.
(Order, ECF No. 18) Subsequent to the issuance of that Order, the Court received Petitioner’s
objections to the R&R. (Obj., ECF No. 21) Under the prisoner mailbox rule, see Miles v. Prunty, 187
F.3d 1104, 1106 n.2 (9th Cir. 1999), the objections were timely, (see Obj. 4, ECF No. 21 (objections
mailed on August 16, 2011)). Accordingly, the Court accepted them nunc pro tunc to August 22,
2011, (Discrepancy Order, ECF No. 20), and vacated its August 29, 2011, Order, (Order, Sept. 9,
2011, ECF No. 22).
-1-
10cv2516
1
Magistrate Judge Adler’s R&R contains a thorough and accurate recitation of the
2
procedural history and facts underlying Plaintiff’s petition for writ of habeas corpus. (R&R 1–3,
3
ECF No. 16) This Order incorporates by reference the facts as set forth in the R&R.
4
5
6
LEGAL STANDARD
1. Review of the Report and Recommendation
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a
7
district court’s duties regarding a magistrate judge’s R&R. The district court “shall make a de
8
novo determination of those portions of the report . . . to which objection is made,” and “may
9
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
10
magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667,
11
673–76 (1980). However, in the absence of a timely objection, “the Court need only satisfy itself
12
that there is no clear error on the face of the record in order to accept the recommendation.” Fed.
13
R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th
14
Cir. 1974)).
15
2. Motion to Dismiss
16
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that
17
the complaint “fail[s] to state a claim upon which relief can be granted,” generally referred to as a
18
motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and
19
sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain
20
statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not
21
require ‘detailed factual allegations,’ . . . it [does] demand[] more than an unadorned, the-
22
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, — US — , 129 S. Ct. 1937, 1949
23
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a
24
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
25
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
26
Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a
27
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
28
129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).
-2-
10cv2516
1
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
2
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly,
3
550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts
4
pled “allow[] the court to draw the reasonable inference that the defendant is liable for the
5
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must
6
be probable, but there must be “more than a sheer possibility that a defendant has acted
7
unlawfully.” Id. Facts “‘merely consistent with’ a defendant’s liability” fall short of a plausible
8
entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept
9
as true “legal conclusions” contained in the complaint. Id. This review requires context-specific
10
analysis involving the Court’s “judicial experience and common sense.” Id. at 1950 (citation
11
omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere
12
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is
13
entitled to relief.’” Id. Moreover, “for a complaint to be dismissed because the allegations give
14
rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading.”
15
McCalden v. Ca. Library Ass’n, 955 F.2d 1214, 1219 (9th Cir. 1990).
16
Where a motion to dismiss is granted, “leave to amend should be granted ‘unless the court
17
determines that the allegation of other facts consistent with the challenged pleading could not
18
possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.
19
1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
20
1986)). In other words, where leave to amend would be futile, the Court may deny leave to
21
amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.
22
23
24
ANALYSIS
1. Summary of the R&R’s Conclusions
Magistrate Judge Adler found dismissal appropriate on two bases: (1) “The
25
Petition . . . fails to state a cognizable habeas claim because it does not address the fact or duration
26
of Petitioner’s incarceration, but only the conditions thereof,” (R&R 4, ECF No. 16); and (2) the
27
Petition “fails to state a proper claim for federal habeas relief” because it does not allege a
28
violation of a federal constitutional right, (id. at 6).
-3-
10cv2516
1
As to the first basis, Magistrate Judge Adler reasoned that “a prisoner challenging
2
conditions of prison life that do not include the fact or duration of confinement must bring the
3
claim under 42 U.S.C. § 1983.” (R&R 3, ECF No. 16) Petitioner’s claim, according to Magistrate
4
Judge Adler, “is a challenge to the prison condition of the scheduling of his next parole
5
consideration hearing,” not a challenge to the fact or duration of his sentence, as is required under
6
28 U.S.C. § 2254. (Id. at 4)
7
As to the second basis, Magistrate Judge Adler reasoned that “Petitioner’s claim that his
8
due process rights and liberty interest in parole were denied is not cognizable on federal habeas
9
review.” (Id. at 4) This is because a federal court has jurisdiction to entertain an application for
10
writ of habeas corpus only where a petitioner alleges that he is in custody in violation of the
11
Constitution, laws, or treaties of the United States, but not for violations of state law. 28 U.S.C.
12
§ 2254(a). Magistrate Judge Adler recognized that California has “created a state interest in parole
13
by virtue of its parole statutes.” (R&R 5, ECF No. 16 (citing Swarthout v. Cooke, __ U.S. __, 131
14
S.Ct. 859, 862 (2011))). As such, the state must provide “‘fair procedures’ to vindicate that
15
interest.” (Id. (quoting Swarthout, 131 S. Ct. at 862)) However, Magistrate Judge Adler went on
16
to conclude that there was no federal due process violation because the “Due Process Clause does
17
not afford Petitioner the right to be present during the administrative review of his file for the
18
purpose of determining whether the date of his next parole consideration hearing should be
19
advanced.” (Id. at 5–6 (citing Swarthout, 131 S.Ct. at 861; Roberts v. Hartley, 640 F.3d 1042,
20
1046 (9th Cir. 2011)))
21
2. Objections to the R&R’s Conclusions
22
Petitioner objects to Magistrate Judge Adler’s R&R, arguing that his petition states a
23
cognizable claim for federal habeas relief. (Obj. 1, ECF No. 21) Petitioner’s objections can be
24
summarized as follows: (1) the R&R erred in denying habeas relief because the refusal to advance
25
his parole consideration hearing was a violation of California Code of Regulations, Title 15,
26
§ 2268, subdivision (b), (id. at 1–2); (2) habeas relief should be granted because the decision not to
27
28
-4-
10cv2516
1
advance his parole consideration hearing was made from an impermissible basis, (id. at 2);3 and
2
(3) the R&R erred in denying habeas relief because denying Petitioner the opportunity to be
3
present at the section 2268–mandated three-year review constituted a violation of his due process
4
rights, (id. at 2–3).
5
A. Violation of Section 2268
6
In the R&R, Magistrate Judge Adler pointed out that section 2268—which provides
7
guidelines regarding the advancement of a prisoner’s parole consideration hearing—is permissive
8
rather than mandatory.4 (R&R 3 n.1, ECF No. 16) Additionally, because section 2268 is a state,
9
not federal, regulation, Magistrate Judge Adler refused habeas relief on this basis. (Id. at 6)
10
Nevertheless, Petitioner contends that this violation of state law “amounts to good cause in a
11
federal habeas corpus proceeding.” (Obj. 2, ECF No. 21)
12
The Court finds that the R&R appropriately denied habeas relief on this basis. Even
13
assuming that a violation of California’s section 2268 were sufficient to issue a writ of habeas
14
corpus, Petitioner has failed to establish any such violation. The plain language of the regulation
15
makes clear that it is within the deputy commissioner’s discretion whether to advance a prisoner’s
16
parole consideration hearing: “[T]he deputy commissioner may direct that a hearing be held within
17
one year . . . . ” Cal. Code Regs. tit. 15. § 2268 (emphasis added); compare id. (“[T]he prisoner’s
18
central file shall be reviewed by a deputy commissioner within three years.” (emphasis added)).
19
Accordingly, the refusal to advance the parole consideration hearing was not a violation of section
20
2268 and Petitioner’s objection on this basis necessarily fails.
21
22
23
24
3
Though referenced in the “supporting facts” section of Petitioner’s petition, (Pet., ECF No.
5), Petitioner’s contention that the refusal to advance his parole consideration hearing was based on
some impermissible basis was not raised as an independent grounds for habeas relief, nor was it
addressed in the R&R.
4
25
26
27
28
California Code of Regulations, Title 15, § 2268, subdivision (b) provides, in relevant part:
If the board defers a hearing for five years, the prisoner’s central file shall be
reviewed by a deputy commissioner within three years, at which time the deputy
commissioner may direct that a hearing be held within one year if the inmate has
been disciplinary free and programming in accordance with board direction since the
last hearing. The board shall notify the prisoner in writing of the deputy
commissioner’s decision.
-5-
10cv2516
1
B. Impermissible Basis for Refusal to Advance Parole Consideration Hearing
2
Petitioner argues that the deputy commissioner’s refusal to advance his parole
3
consideration hearing based on Petitioner’s lack of vocational training was “‘contrary to the
4
record’, and also ‘to clearly established federal law.’” (Obj. 2, ECF No. 21) This argument is
5
based on the fact that following Petitioner’s initial 2007 parole hearing, the panel made several
6
recommendations, none of which included vocational training. (Id.); (Pet., ECF No. 5) Thus,
7
argues Petitioner, it was impermissible for the deputy commissioner to refuse to advance his
8
parole consideration hearing for the reason that Petitioner had not engaged in any vocational
9
training. Further supporting this argument and contrary to the deputy commissioner’s conclusion,
10
Petitioner states that he “has currently completed a vocational trade since being at Calipatria state
11
Prison, in 2006.” (Pet., ECF No. 5)
12
To the extent that Petitioner contends that the deputy commissioner’s decisionmaking
13
constituted a violation of section 2268, his objection is overruled for the same reasons as stated
14
above. Section 2268 limits the deputy commissioner’s discretion to advance the parole
15
consideration hearing only to the extent that it requires that “the inmate has been disciplinary free
16
and programming in accordance with board discretion since the last hearing.” Cal. Code Regs. tit.
17
15, § 2268. If that condition is satisfied, it is then within the deputy commissioner’s discretion
18
whether to advance the hearing, though he is not required to do so. See supra at 5. Accordingly,
19
Petitioner is unable to state a violation of section 2268 and Petitioner’s objection on this basis
20
necessarily fails.
21
To the extent, in the alternative, that Petitioner contends that the deputy commissioner’s
22
decisionmaking violated his right to an earlier parole date, his objection is overruled on this basis
23
as well. As explained infra, there is no federal constitutional right to parole, and as such this claim
24
is not appropriate for federal habeas review.
25
//
26
//
27
//
28
//
-6-
10cv2516
1
C. Denial of Opportunity to be Present at Three-Year Review
2
Finally, Petitioner argues that he was denied his due process rights under Greenholtz v.
3
Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1 (1979), because he was denied the
4
opportunity to be present at the deputy commissioner’s three-year review. (Obj. 2, ECF No. 21)
5
Petitioner contends that he “has a right to be heard at any hearing.” (Id. at 3)
6
While “California law creates a liberty interest in parole,” Swarthout, 131 S. Ct. at 861,
7
“[w]hatever liberty interest exists is . . . a state interest created by California law,” id. at 862.
8
Although federal habeas relief is not available for errors of state law, when “a State creates a
9
liberty interest, the Due Process Clause requires fair procedures for its vindication—and federal
10
courts will review the application of those constitutionally required procedures.” Id. Only
11
minimal procedures are required in the context of parole, however. Id.
12
Here, Magistrate Judge Adler correctly determined that “Petitioner does not allege facts to
13
establish he was deprived of his liberty interest in parole. He was present at his initial parole
14
consideration hearing on March 14, 2007, was given the opportunity to be heard, and was provided
15
a statement of reasons why parole was denied.” (R&R 5, ECF No. 16) Pursuant to the Supreme
16
Court’s decision in Greenholtz, “[t]he Constitution does not require more.” 442 U.S. at 16.
17
Petitioner’s objection on this basis is therefore overruled.
18
CONCLUSION
19
For the reasons stated above, the Court ADOPTS the R&R in full. Respondent’s motion to
20
dismiss is GRANTED. Petitioner’s petition for writ of habeas corpus is DISMISSED
21
WITHOUT PREJUDICE to Petitioner’s bringing his claim under 42 U.S.C. § 1983.
22
IT IS SO ORDERED.
23
24
25
26
DATED: January 23, 2012
Honorable Janis L. Sammartino
United States District Judge
27
28
-7-
10cv2516
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?