Opinion
No. 2:16-cv-1119 GEB GGH P
07-06-2016
GONZALO R. GONZALES, Petitioner, v. JOE LIZARRAGA, Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2014 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole.
Review of the federal habeas petition and attached exhibits demonstrates that petitioner is not entitled to relief on the grounds alleged, thus requiring dismissal of the petition. See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts ("[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition....").
In Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859 (2011), 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 federal habeas petitioner challenging the denial of parole is entitled is the minimal procedural due process protections set forth in Greenholtz v. Inmates of Nebraska Penal and Corrections Complex, 442 U.S. 1, 16 (1979) (i.e., an opportunity to be heard, and a statement of reasons for the denial). See Swarthout, 562 U.S. at 220. Under the Supreme Court's decision in Swarthout, "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 220-21.
In Styre v. Adams, 645 F.3d 1106 (9th Cir. 2011), the Ninth Circuit found that the Supreme Court's decision in Swarthout applies equally to cases in which the Governor, rather than the BPH, found the inmate unsuitable for parole. The Styre court also noted that the federal Due Process Clause "does not require that the Governor hold a second suitability hearing before reversing a parole decision." 645 F.3d at 1108. Thus, it appears there is no federal due process requirement for a "some evidence" review, whether parole eligibility was denied at the BPH level or by the Governor.
Petitioner claims that the reasons given in the April 30, 2014 parole denial were "arbitrary and capricious" because he has been a model inmate and has successfully rehabilitated. (ECF No. 1 at 1.) Petitioner alleges that the denial must comply with Cal. Penal Code § 3041, and he requests that the court order an evidentiary hearing and require the BPH to show cause for its denial. Petitioner claims that parole hearings are a pretense and a farce, and the BPH plans to keep him in prison forever because he had claimed imperfect self-defense for second degree murder. (ECF No. 1 at 2.) Petitioner also alleges that the parole hearing transcript from April 30, 2014 contains eighty "indiscernables" or inaudibles in the 125 page transcript, rendering it insufficient for the court's review. (ECF No. 1 at 7.)
These claims are not cognizable. 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. Swarthout, 131 S.Ct. at 862-63. Petitioner claims that BPH decision was arbitrary and capricious; however, this claim is also contradicted by the record. Petitioner is only entitled to an opportunity to be heard and to be provided a statement of the reasons for the parole denial. Id. at 862. The transcript from the hearing indicates that petitioner was represented by counsel and both counsel and petitioner were present and had an opportunity to present their arguments and were then informed on the record why parole was denied. (Ex. C, ECF No. 1 at 123-248.) The Due Process Clause requires no more.
The number of indiscernible and inaudible notations did not hinder the undersigned in reviewing the substance of the transcript. --------
IT IS HEREBY RECOMMENDED that this petition be dismissed for the reasons discussed above.
If petitioner files objections, he shall also address if a certificate of appealability should issue. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: July 6, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE GGH:076/ky:gonz1119.101a