The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2007 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole.
On February 3, 2011, the undersigned ordered both parties to provide briefing regarding the recent United States Supreme Court decision that found that the Ninth Circuit erred in commanding a federal review of the state's application of state law in applying the "some evidence" standard in the parole eligibility habeas context. Swarthout v. Cooke, 502 U.S. ___, ___ S. Ct. ___, 131 S. Ct. 859, 861 (2011).*fn1
The parties have timely filed briefing. In addition, petitioner has filed a motion to stay the proceedings. Petitioner's motion to stay is predicated on the unsupported premise that a motion for rehearing of the per curiam decision in Swarthout v. Cooke, 131 S. Ct. 859, is imminent. Petitioner provides no factual support for such a contention. Therefore, the court will recommend denial of the motion for a stay.
Moreover, for the reasons set forth in the prior order, it appears there is no federal due process requirement for a "some evidence" review, notwithstanding petitioner's argument, thus the federal courts are precluded from a review of the state court's application of its "some evidence" standard.*fn2 A review of the petition in this case demonstrates that it is entirely based on alleged violation of California's "some evidence" requirement. Petitioner has provided a copy of the BPH subsequent parole consideration hearing at issue in this action which demonstrates that therein petitioner was "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout, at 862; see Amended Petition, Exhibit A, pp. 16-133. According to the Supreme Court, the Constitution does not require more. Therefore, the petition should be denied.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Petitioner's motion for a stay, filed on February 24, 2011 (Dkt. # 23), be denied; and
2. The petition be denied.
If petitioner files objections, he shall also address if a certificate of appealability should issue and, if so, as to which issues. 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, any party 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." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to ...