Leon v. Hartley, 1:10-cv—02250-LJO-SKO-HC

ELMOR JACOB DE LEON, Petitioner,

v.JAMES HARTLEY, Warden, Respondent.

1:10-cv—02250-LJO-SKO-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: May 27, 2011

FINDINGS AND RECOMMENDATIONS TO

DISMISS WITHOUT LEAVE TO AMEND

PETITIONER'S DUE PROCESS CLAIM

CONCERNING THE EVIDENCE (Doc. 10)

FINDINGS AND RECOMMENDATIONS TO

DENY THE REMAINING CLAIMS IN THE

FIRST AMENDED PETITION (Doc. 10)

FINDINGS AND RECOMMENDATIONS

TO DIRECT THE ENTRY OF JUDGMENT

FOR RESPONDENT AND

TO DECLINE TO ISSUE A CERTIFICATE

OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the first amended petition (FAP), which was filed in the United States District Court for the Central District of California on November 30, 2009, and transferred to this Court on December 3, 2010. Respondent filed an answer with exhibits on June 24, 2010, and Petitioner filed a traverse on July 9 and 14, 2010.

I. Jurisdiction

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Petitioner, an inmate of the Avenal State Prison at Avenal, California, claims that he suffered violations of his constitutional rights when he was found unsuitable for parole by the California Board of Parole Hearings (BPH) after a hearing held at Avenal on September 9, 2008. (FAP, doc. 10, 1-6.) Thus, violations of the Constitution are alleged.

Further, the decision challenged was made at Avenal, California, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).

Respondent, Warden James Hartley, answered the petition. (Doc. 16, 1, 8.) Petitioner thus named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Accordingly, the Court concludes that it has jurisdiction over the proceeding and over the Respondent.

II. Consideration of Dismissal of the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . ." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

Here, after the answer and traverse were filed, the Supreme Court decided Swarthout v. Cooke, 562 U.S. -, 131 S.Ct. 859, 861-62 (2011). Because Swarthout appears to apply in the instant case, and because the case is fully briefed, the Court will consider whether Petitioner's allegations concerning the absence of some evidence to support the denial of parole and the application of the "some evidence" rule in Petitioner's case state a claim for relief cognizable in an action pursuant to 28 U.S.C. § 2254.

III. Background

Petitioner alleged in the FAP (doc. 10) that he was an inmate of the Avenal State Prison serving a sentence of nineteen (19) years to life. The life sentence was imposed on August 16, 1991, by the Los Angeles Superior Court upon Petitioner's conviction of second degree murder, attempted murder, and assault with a firearm in violation of Cal. Pen. Code §§ 187, 664, and 245. (FAP. 1-2.) In addition to the BPH's denial of parole, Petitioner also challenges the decisions of the state courts which upheld the BPH's denial, including the rulings of the Los Angeles County Superior Court on April 1, 2009 (Ans., Ex. 1); the California Court of Appeal, Second Appellate District, on April 30, 2009 (Ans. Ex. 3); and the California Supreme Court on November 10, 2009 (Ans., Ex. 5).

Petitioner raises the following claims in the FAP: 1) thedecision violated Petitioner's right to due process of law because it was not supported by some evidence of risk to the public or to society (FAP. 6, 8, 12); 2) the BPH's denial of parole violated Petitioner's right to the equal protection of the laws (FAP 5); 3) Petitioner was subjected to an ex post facto law because the BPH denied parole based on the commitment offense and the same reasons used to deny parole previously (FAP 5, 9); 4) Petitioner's rights under the First Amendment were violated by the BPH's requirement that he attend Alcoholics Anonymous (AA) (FAP 6-10); 5) the BPH violated Petitioner's liberty interest based on state law, and the BPH's decision conflicted with California regulations (FAP 5, 6, 12-13); and 6) the BPH's decision constituted cruel and unusual punishment (FAP 10). Petitioner complains that the decision reflected impermissible reliance on immutable factors such as the circumstances of the commitment offense; further, the board relied on stale evidence of addiction to alcohol, and the psychiatric evidence was favorable to Petitioner. (FAP 6, 9-10, 12.)

Petitioner submitted in support of his petition the transcript of the proceedings held before the BPH on September 9, 2008. (FAP, ex. C, doc. 10-1, 26-50; doc. 10-2, 1-50; doc. 10-3, 1-39.) The transcript reflects that Petitioner received documents before the hearing (doc. 10-1, 30); attended the hearing (FAP, doc. 10-1, 26, 29; doc. 10-2; doc. 10-3, 1-39); addressed the board while under oath concerning numerous factors of parole suitability (doc. 10-1, 38-50; doc. 10-2, 1-50; doc. 10-3, 1-16); made a personal statement to the board in favor of parole (doc. 10-3, 27-30); and was represented by counsel, whoadvocated and made a closing statement on Petitioner's behalf (doc. 10-1, 26, 29-30, 36; doc. 10-3, 22-27).

Petitioner was present when the board stated its reasons for the finding of unsuitability for parole, which was based on the conclusion that there was an unreasonable risk of danger to others if Petitioner were released. (FAP, doc. 10-3, 31-39.) The board relied on Petitioner's commitment offense and his lack of insight into his offense. (FAP, doc. 10-3, 31-39.)

IV. Failure to State a Cognizable Due Process Claim

Petitioner argues that his liberty interest in parole was violated by the BPH's decision because it lacked the support of some evidence. Petitioner contends that there was no new evidence arising after parole was previously denied to justify the instant denial of parole; further, the evidence presented supported a grant of parole.

The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures with respect to the liberty interest. Swarthout v. Cooke, 562 U.S. -, 131 S.Ct. 859, 861-62 (2011).

However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).¹ Swarthout v. Cooke, 131 S.Ct. 859, 862. In Swarthout, the Court rejected inmates' claims that they were denied a liberty interest because there was an absence of "some evidence" to support the decision to deny parole. The Court stated:

There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication-and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California's received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why

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