Opinion
No. CIV S-11-1287 DAD P.
July 20, 2011
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Petitioner has consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 4.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4, Rules Governing Section 2254 Cases. Thus, Rule 4 "'explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated.'"O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quotingGutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)). Moreover, the Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."
In his May 13, 2011 petition, petitioner raises a due process challenge to former Governor Arnold Schwarzenegger's March 30, 2010 reversal of the November 5, 2009 decision by the California Board of Parole Hearings ("Board") to grant petitioner parole. (Doc. No. 1 at 17-72.) Petitioner claims that the Governor's decision violated his right to due process because it was not supported by "some evidence" that petitioner posed a current danger to society if released from prison, as required under California law. A review of the record before the court reflects that petitioner's allegations plainly do not entitle him to federal habeas corpus relief. Accordingly, his petition will be dismissed pursuant to habeas Rule 4.
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).
A protected liberty interest may arise from either the Due Process Clause of the United States Constitution "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies."Wilkinson v. Austin, 545 U.S. 209, 221 (2005). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set.Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). However, a state's statutory scheme, if it uses mandatory language, "creates a presumption that parole release will be granted" when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest. Greenholtz, 442 U.S. at 12. See also Allen, 482 U.S. at 376-78.
California's parole scheme gives rise to a liberty interest in parole protected by the federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002);see also Swarthout v. Cooke, 562 U.S. ___, ___, 131 S. Ct. 859, 861-62 (2011) (finding the Ninth Circuit's holding in this regard to be a reasonable application of Supreme Court authority);Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) ("[Swarthout v.] Cooke did not disturb our precedent that California law creates a liberty interest in parole.") In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002).
In Swarthout, the Supreme Court reviewed two cases in which California prisoners were denied parole — in one case by the Board, and in the other by the Governor after the Board had granted parole. Swarthout, 131 S. Ct. at 860-61. The Supreme Court noted that when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment requires fair procedures, "and federal courts will review the application of those constitutionally required procedures." Id. at 862. The Court concluded that in the parole context, however, "the procedures required are minimal" and that the "Constitution does not require more" than "an opportunity to be heard" and being "provided a statement of the reasons why parole was denied." Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit decisions that went beyond these minimal procedural requirements and "reviewed the state courts' decisions on the merits and concluded that they had unreasonably determined the facts in light of the evidence." Swarthout, 131 S. Ct. at 862. In particular, the Supreme Court rejected the application of the "some evidence" standard to parole decisions by the California courts as a component of the federal due process standard. Id. at 862-63. See also Pearson, 639 F.3d at 1191.
In its per curiam opinion the Supreme Court did not acknowledge that for twenty-four years the Ninth Circuit had consistently held that in order to comport with due process a state parole board's decision to deny parole had to be supported by "some evidence," as defined in Superintendent v. Hill, 472 U.S. 445 (1985), that bore some indicia of reliability. See Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987);McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002) ("InJancsek . . . we held that the process that is due in the parole rescission setting is the same as the Supreme Court outlined inSuperintendent v. Hill. . . .")
As noted above, petitioner seeks federal habeas relief on the grounds that the Governor's 2010 reversal of the Board's decision to grant him parole, and the findings upon which that reversal was based, were not supported by "some evidence" as required under California law. However, under the Supreme Court's decision in Swarthout this court may not review whether California's "some evidence" standard was correctly applied in petitioner's case. 131 S. Ct. at 862-63; see also Miller v. Oregon Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 716 (9th Cir. 2011) ("The Supreme Court held in [Swarthout v.] Cooke that in the context of parole eligibility decisions the due process right is procedural, and entitles a prisoner to nothing more than a fair hearing and a statement of reasons for a parole board's decision[.]"); Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011) (under the decision in Swarthout, California's parole scheme creates no substantive due process rights and any procedural due process requirement is met as long as the state provides an inmate seeking parole with an opportunity to be heard and a statement of the reasons why parole was denied); Pearson, 639 F.3d at 1191 ("While the Court did not define the minimum process required by the Due Process Clause for denial parole under the California system, it made clear that the Clause's requirements were satisfied where the inmates 'were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.'")
The federal habeas petition pending before the court in this case reflects that at his 2009 parole suitability hearing petitioner was given the opportunity to be heard and received a statement of the reasons for the Board's suitability decision. (Doc. No. 1 at 101-202.) That record also reflects that petitioner received a document from the Governor's office which explained the reasons supporting the Governor's reversal of the Board's 2009 decision granting parole. (Id. at 207-10.) That is all the process that was due petitioner under the Constitution.Swarthout, 131 S. Ct. 862; see also Miller, 642 F.3d at 716;Roberts, 640 F.3d at 1046; Pearson, 639 F.3d at 1191. This is true even though petitioner is challenging the Governor's reversal, and not a decision by the Board. Swarthout, 131 S. Ct. at 860-61; see also Pearson, 639 F.3d at 1191.
Accordingly, the pending petition will be dismissed because it plainly appears from the face of the petition and the exhibits annexed to it that the petitioner is not entitled to federal habeas relief with respect to his due process claim.
At one point in his petition, petitioner states that he is "factually governed by the Ex Post Facto Clause and Retroactive Due Process, of the U.S. Const., Art. I, § 10, Amends. 5th and 14th; Calif. Const., Art. I, § 7(a), § 9, expressively under the 1978 California Penal Code and CRB guidelines and regulations of the 15 CCR." (Doc. No. 1 at 60.) At another point, petitioner states that "The Governor's reversal of parole, pursuant to the review authority afforded, constitutes a violation of the Ex Post Facto provisions of the Federal and State Const. " (Id. at 67.) These allegations are vague, conclusory, and unsupported by facts or argument, and are therefore insufficient to state a claim for habeas relief based on a violation of the Ex Post Facto Clause. Accordingly, any such claim is also summarily dismissed.
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. Petitioner's application for writ of habeas corpus (Doc. No. 1) is dismissed; and
2. This action is closed.
DATED: July 19, 2011.