Opinion
Case No. 1:18-cv-00096-DAD-MJS (HC)
03-27-2018
MARK ANTHONY, Petitioner, v. JOHN GARZA, Warden, Respondent.
FINDINGS AND RECOMMENDATION TO DENY REQUEST TO STAY PETITION AND HOLD IT IN ABEYANCE PENDING EXHAUSTION OF STATE COURT REMEDIES
(ECF No. 18)
THIRTY (30) DAY OBJECTION DEADLINE
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Petitioner's motion to stay the petition and hold it in abeyance pending his exhaustion of state court remedies. For the reasons stated below, the undersigned will recommend that the motion be denied.
I. Procedural History
Petitioner initiated this action on December 8, 2017 with the filing of a petition challenging the August 13, 2017 decision of the California Board of Parole Hearings, denying him parole. (ECF No. 1.) Therein, Petitioner did not state whether he had presented his claims to the California Supreme Court. He cited to a California Supreme Court decision issued in 2017 (Case No. S238533), but that petition appeared to address Petitioner's underlying conviction. Additionally, a review of the California Supreme Court docket reflects that the petition in Case No. S238533 was disposed of on March 15, 2017, prior to the Board of Parole Hearings' decision at issue in the instant petition.
It appearing that Petitioner did not exhaust his state remedies with respect to the claims presented here, the undersigned ordered Petitioner to show cause why his action should not be dismissed. (ECF No. 15.) Petitioner did not respond. Accordingly, the undersigned recommended dismissal of the petition. (ECF No. 17.) Those findings and recommendations remain pending before the District Judge.
Petitioner filed no specific objections to the findings and recommendations, but instead filed the instant request to stay the petition and hold it in abeyance pending his exhaustion in state court. (ECF No. 18.) He concedes that he has not exhausted his claims, but states that, on February 20, 2018, he filed a petition for writ of habeas corpus in the Kern County Superior Court and he intends to pursue it through the California Court of Appeal and California Supreme Court, if necessary.
II. Legal Standard
The petition at issue here is fully unexhausted. A district court has the discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in Rhines v. Weber, 544 U.S. 269 (2005). Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016).
Under Rhines, a district court abuses its discretion in denying a stay if (1) the petitioner had good cause for his failure to exhaust, (2) his unexhausted claims are potentially meritorious, and (3) there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. Rhines, 544 U.S. at 278. If all three of these circumstances are found, the court should stay the habeas case and hold it in abeyance while the petitioner returns to state court to present his unexhausted claims.
III. Discussion
The Court begins by expressing serious doubt as to whether Petitioner has presented a potentially meritorious claim. Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (holding that claim is "plainly meritless" only if "it is perfectly clear that the petitioner has no hope of prevailing"). Federal habeas review of state parole decisions is extremely limited. 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. 1, 5 (2010).
California law creates a liberty interest in parole that is protected by the Fourteenth Amendment's Due Process Clause. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011). However, "[t]here 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." Id. at 220. Instead, the existence of a State-created liberty interest requires only that fair procedures be implemented for its vindication. Id.
In this regard, the Constitution requires only that a potential parolee be provided an opportunity to be heard and a statement of reasons why parole was denied. Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979); Swarthout, 562 U.S. at 220. Prisoners who are "allowed to speak at their parole hearings and to contest the evidence against them, [are] afforded access to their records in advance, and [are] notified as to the reasons why parole was denied" have been afforded all of the process due under the Fourteenth Amendment. Swarthout, 562 U.S. at 221. This Court may not go further to inquire whether the procedures produced "the result that the evidence required" or whether the state has "unreasonably determined the facts in light of the evidence." Id. at 220-21.
Here, Petitioner contends that the Parole Board's determination was unreasonable in light of the facts. Specifically, he contends that the Board relied on a conviction history that included a crime (kidnapping) that Petitioner did not commit. He contends that this error or fabrication resulted from a history of racial discrimination and collusion between the Sacramento District Attorney's Office and the Parole Board.
As stated, however, the Court cannot review whether the facts presented at the hearing supported the Parole Board's determination. And, while Petitioner's claims of bias on the part of the decision-maker may facially implicate the Due Process clause, they appear to be based entirely on speculation.
In any event, even assuming that Petitioner has presented a potentially meritorious claim, he has not shown good cause for his prior failure to exhaust and the Court has no basis to determine whether or not Petitioner has engaged in dilatory tactics. Petitioner offers no explanation as to why he did not sooner exhaust his claims.
IV. Conclusion and Recommendation
Based on the foregoing, Petitioner has not met the requirements for a stay under Rhines. Accordingly, it is HEREBY RECOMMENDED that his request to stay the petition and hold it in abeyance be DENIED.
The findings and recommendation are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within THIRTY (30) days after being served with the findings and recommendation, Petitioner may file written objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Petitioner is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: March 27, 2018
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE