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Allen K. Ware v. Gary Swarthout

March 23, 2011

ALLEN K. WARE, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at a parole consideration hearing held on October 16, 2008. He claims that the Board's 2008 decision finding him unsuitable for parole violates his federal right to due process and the Ex Post Facto Clause.

As discussed below, the United States Supreme Court has held that the only inquiry on federal habeas review of a denial of parole is whether the petitioner has received "fair procedures" for vindication of the liberty interest in parole given by the state. Swarthout v. Cooke, 562 U.S. ___, No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). In the context of a California parole suitability hearing, a petitioner receives adequate process when he/she is allowed an opportunity to be heard and a statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners were "allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied"); see also Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 16 (1979). For the reasons that follow, applying this standard here requires that the petition for writ of habeas corpus be denied on petitioner's due process claim.

I. Procedural Background

Petitioner is confined pursuant to a 1976 judgment of conviction entered against him in the Los Angeles County Superior Court following his conviction on charges of first degree murder, burglary, and possession of marijuana for sale. Pet. at 19.*fn1 Pursuant to that conviction, petitioner was sentenced to seven years to life in state prison. Id. at 1.

Petitioner was found suitable for parole in 1984, but his parole was later rescinded. Pet., Ex. F. The facts surrounding these matters were set forth in a previous habeas corpus action filed by petitioner in this court, as follows:

Petitioner is currently serving a sentence of life with the possibility of parole for first degree murder and first degree burglary. He began his term of incarceration on December 28, 1976. At that time, petitioner's minimum eligible parole date (MEPD) was calculated to be June 27, 1983. In 1982, an initial parole hearing was held. Petitioner was placed on the calendar for a parole suitability hearing. In June 1983, the state held the scheduled hearing. Petitioner was denied parole. On May 10, 1984, petitioner received another parole hearing. After that hearing, the BPT granted petitioner parole and set his term of incarceration at 174 months. This date was later advanced to October 23, 1987. On October 30, 1986, petitioner was issued a rules violation report for possession of seven hundred dollars. He was subsequently found guilty of a "serious" rules violation based on his admission of guilt. Petitioner admitted that he had the money and stated that he planned to give it to his wife.

On April 21, 1987, the state held a hearing to determine whether petitioner's disciplinary violation was sufficient cause for rescission of petitioner's parole date. Petitioner appeared voluntarily without the presence of retained counsel. Petitioner admitted that he possessed the money, but stated that his mother had sent it to him through the mail and that he intended to give it to his wife. The hearing panel determined that petitioner's testimony did not appear credible, that petitioner had a history of "drug sales," and that, although the acquisition of the currency was "still somewhat of a mystery," rescission of petitioner's parole date was "more than warranted on the facts of this case."

Case No. CIV S-98-0752 GEB JFM P, Dckt. No. 11, at 2.*fn2 Petitioner has apparently not been found suitable for parole since 1987.

The parole consideration hearing that is placed at issue by the instant petition was held on October 16, 2008. Pet. at 59. Petitioner appeared at and participated in the hearing. Id. at 61-142. Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for two years and the reasons for that decision. Id. at 143-52.

Petitioner challenged the Board's 2008 decision in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court. Answer, Ex. 1. The Superior Court denied that petition in a decision on the merits of petitioner's due process claim. Id., Ex. 2. The Superior Court did not address petitioner's ex post facto claim. Id. Petitioner subsequently challenged the Board's 2008 decision in petitions for writ of habeas corpus filed in the California Court of Appeal and California Supreme Court. Id., Exs. 3, 5. The California Court of Appeal denied petitioner's due process claim with citations to In re Lawrence, 44 Cal.4th 1181, 1212 (2008) and In re Shaputis 44 Cal.4th 1241, 1254-161 (2008), and denied his ex post facto claim with citations to Cal. Penal Code § 3041, In re Duarte, 143 Cal.App.3d 943, 946 (1983), and In re Seabock, 140 Cal.App.3d 29, 41 (1983). Id., Ex. 4. The California Supreme Court summarily denied all of petitioner's claims. Id., Ex. 6.

II. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...


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