Opinion
2:23-cv-01910-JDP (HC)
11-30-2023
MICHAEL DURAN, Petitioner, v. GAVIN NEWSOM, Respondent.
ORDER
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a state prisoner represented by counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. He argues that no evidence supports the state's denial of his parole. After reviewing his initial petition, I find that it fails to state a cognizable claim. I will give him leave to amend before recommending the petition be dismissed, however.
The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boydv. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).
Petitioner argues that no evidence supports the state's denial of his parole. ECF No. 1 at 5-7. In so doing, he cites the Ninth Circuit's decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), for the proposition that “some evidence” must support the state's denial of parole. ECF No. 1 at 7. That case was overruled by the Supreme Court in Swarthout v. Cook, 562 U.S. 216 (2011). There, the Supreme Court held that, in the context of parole, the constitution requires only that the prisoner denied parole be afforded an opportunity to be heard and a statement of reasons as to why parole was denied. Id. at 220. Petitioner does not appear to argue that he did not receive the minimum procedure that he was due.
I will give petitioner an opportunity to amend and explain why this action should still proceed.
It is ORDERED that within thirty days of this order's entry, petitioner may file an amended habeas petition. If he does not, I will recommend this action be dismissed.
IT IS SO ORDERED.