Opinion
Case No. CV 13-0535-R (RNB)
03-07-2013
BOBBIE EDELEN, Petitioner, v. J.D. HARTLEY (Warden), Respondent.
I HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED BY FIRST CLASS MAIL. POSTAGE PREPAID, TO ALL COUNSEL (OR PARTIES) AT THEIR RESPECTIVE MOST RECENT ADDRESS OF RECORD IN THIS ACTION ON THIS DATE.
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DEPUTY CLERK
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a California state prisoner currently serving an indeterminate life sentence for first degree murder. On January 24, 2013, he filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein. The Petition purports to be challenging the outcome of a subsequent parole consideration hearing held on January 31, 2012 at petitioner's place of incarceration.
The parole consideration hearing at issue took place before a two-member panel of the Board of Parole Hearings (the "Board"). Petitioner was represented by counsel. A Los Angeles County Deputy District Attorney also was present via teleconference. After reviewing with petitioner various information from his file and affording petitioner and his counsel the opportunity to be heard, the Board panel advised of its conclusion that petitioner was "not suitable for parole supervision and would pose an unreasonable risk or danger to society if released from prison at this time." The panel also explained the basis for its conclusion. Accordingly, the panel denied parole for two years. (See Transcript of January 31, 2012 parole consideration hearing.)
At the outset of the hearing, petitioner's counsel advised the hearing panel and petitioner confirmed that petitioner would not be speaking directly to the panel, but rather would be speaking only through his counsel.
It appears from the Petition and attachments thereto that petitioner filed habeas petitions in turn in the Superior Court, the California Court of Appeal, and the California Supreme Court, each of which was denied.
Petitioner is making the following claims herein:
1. The Board violated petitioner's federal and state constitutional rights to due process by impermissibly relying on petitioner's commitment offense in finding petitioner unsuitable for parole.
2. In finding petitioner unsuitable for parole, the Board impermissibly construed as unfavorable a psychological report that rated petitioner as a low to moderate risk, in violation of petitioner's "right to due consideration."
3. The Board violated petitioner's federal and state rights to "due consideration and process" when it denied parole because petitioner exercised his rights under California law to not speak with the panel about his commitment offense.
Preliminarily, the Court notes that, to the extent petitioner is claiming that the Board's denial of parole violated California constitutional, statutory, regulatory, and/or decisional law, his claims are not cognizable on federal habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475,116 L. Ed. 2d 385 (1991) (reiterating that "it is not the province of a federal habeas court to reexamine state court determinations on state law questions"); Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940,71 L. Ed. 2d 78 (1982) (federal courts "may intervene only to correct wrongs of constitutional dimension"); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.) ("We accept a state court's interpretation of state law, . . . and alleged errors in the application of state law are not cognizable in federal habeas corpus."), cert. denied, 522 U.S. 881 (1997).
To the extent petitioner is claiming that the Board's denial of parole violated his federal constitutional right to due process, Swarthout v. Cooke, - U.S. -, 131 S. Ct. 859 (2011), 178 L. Ed. 2d 732 (per curiam) is dispositive of his claim(s). There, the Supreme Court rejected the Ninth Circuit's position on the standard of review applicable to California parole denials. The Supreme Court held that, even if a California prisoner has a state-created liberty interest in parole, the only federal due process to which a California prisoner challenging the denial of parole is entitled is the minimal procedural due process protections set forth in Greenholtz v. Inmates of Neb. Penal and Corrections Complex, 442 U.S. 1, 16, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) (i.e., an opportunity to be heard, and a statement of reasons for the denial). See Cooke, 131 S. Ct. at 861-62. The Supreme Court observed that, where the records reflect that the prisoners were allowed to speak at the hearings and to contest the evidence, were afforded access to their records in advance, and were notified as to the reasons why parole was denied, "[t]hat should have been the beginning and the end of the federal habeas courts' inquiry into whether [the prisoners] received due process." See id. at 862. Under the Supreme Court's decision in Cooke, "it is no federal concern . . . whether California's 'some evidence' rule of judicial review (a procedure beyond what the Constitution demands) was correctly applied." See id. at 862-63.
Here, as in Cooke, the record reflects that petitioner was allowed to speak at the January 31, 2012 parole consideration hearing (although he elected only to speak through counsel), was allowed to contest the evidence, was afforded access to his records in advance, and was notified as to the reasons why parole was denied. Indeed, petitioner is not contending in the Petition that he was denied the minimal procedural due process protections set forth in Greenholtz. While petitioner does appear to be contending that the California courts incorrectly applied California's "some evidence" rule, whether the California courts did so is not a federal concern under the Supreme Court's decision in Cooke. See, e.g., Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011) (reversing grant of habeas relief under former Ninth Circuit standard in light of Cooke and holding that Due Process Clause satisfied where petitioner had been permitted to speak on his own behalf at the hearing and contest the evidence against him and where the Board had provided an explanation of its decision); Wyrick v. Mendoza-Powers, 2011 WL 835550, at *1 (9th Cir. Mar. 10, 2011) (affirming denial of habeas petition in light of Cooke where petitioner claiming the Board's decision "was not supported by 'some evidence' and therefore violated his due process rights," and not raising any procedural challenges); Kunkler v. Muntz, 2011 WL 830647, at * 1 (9th Cir. Mar. 9, 2011) (in light of Cooke, vacating previous order affirming district court judgment granting habeas petition, and instead reversing district court judgment). Indeed, the Ninth Circuit is not even issuing certificates of appealability where petitioners challenging the denial of parole are not claiming that they were denied the minimal procedural due process protections set forth in Greenholtz, See, e.g., Hibbert v. Kane, 468 Fed. Appx. 809, at *1 (9th Cir. Feb. 23, 2012); Rouse v. Goughnour, 467 Fed. Appx. 664, at *1 (9th Cir. Jan. 27, 2012); Deluna v. Curry, 447 Fed. Appx. 790, at *1 (9th Cir. Aug. 16, 2011).
Ninth Circuit unpublished decisions are now citable for their persuasive value per Ninth Circuit Rule 36-3.
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IT THEREFORE IS ORDERED that this case be summarily dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court and that Judgment be entered accordingly.
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MANUEL L. REAL
UNITED STATES DISTRICT JUDGE
Presented by: ______________
Robert N. Block
United States Magistrate Judge