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Merlyn Eugene Maas v. James E. Tilton


May 2, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


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 2006 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 timely filed briefing, yet for the reasons set forth in the prior order, and notwithstanding petitioner's argument, there is no federal due process requirement for a "some evidence" review, thus the federal courts are precluded from a review of the state court's application of its "some evidence" standard.*fn2

Petitioner attempts the last argument he can -- that the Supreme Court only decided that the federal courts should not be reviewing a parole eligibility decision under the state "some evidence" standard; therefore this court should review it under a federal due process "some evidence" standard. However, neither the words of Swarthout, nor subsequent case law interpreting Swarthout, permits the adoption of the argument.

First, Swarthout made clear that "[n]o opinion of ours supports converting California's "some evidence" rule into a substantive federal requirement." Swarthout, 131 S.Ct. at 862. This means, to the undersigned, that the liberty interest in parole eligibility review will not contain a federal requirement for a "some evidence" test. To assert that the Supreme Court simply "forgot to mention" [the undersigned's characterization] in its decision sub judice that there already was existing another (mirror image) federal "some evidence" test to be applied, is to assert that the Supreme Court took the Swarthout case to opine on some meaningless, technical, with no practical significance issue. Doubtful.

Moreover, subsequent Ninth Circuit case law understands that the "only federal right at issue is procedural." Id. At 863. See Pearson v. Muntz, __F.3d ___, 2011 WL 1238007 *5 (9th Cir. Apr. 5, 2011) (under Swarthout, due process requires no more than that an inmate seeking parole have an "opportunity to be heard, a notification of the reasons as to denial of parole and access to their records in advance"); see also, Roberts v. Hartley, __F.3d __, 2011 WL 1365811 * 4( 9th Cir. Apr. 12, 2011) (California courts, not the Ninth Circuit, are responsible for proper application of "the constitutionally adequate procedures governing California's parole system..." citing Swarthout, 131 S. Ct. at 86[3]).*fn3

Finally, the petition for re-hearing in Swarthout to the Supreme Court, referenced by petitioner in his supplemental briefing (at p. 1), has subsequently been denied. See Swarthout v. Cooke, __ S. Ct.__, 2011 WL 1225812 (U.S. Apr. 04, 2011).

In claim 1 of the petition, petitioner claims that his Fourteenth Amendment due process rights were violated by a parole denial he characterizes as "arbitrary, capricious, and fundamentally unfair" because the decision was "not supported by reliable evidence and failed to conform to the controlling statutes and regulations." In claim 1, petitioner maintains that there is no evidence that he "currently poses an unreasonable risk to public safety if released." Id., at 14. Essentially, therefore, claim 1 alleges a violation of California's "some evidence" requirement. As to the "some evidence" claim, Swarthout commands that petitioner cannot proceed. This court's review of the BPH hearing transcript confirms that petitioner, despite his argument otherwise, received all the process that was due in having been "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout, at 862; Answer (docket # 18-2, pp. 3-144).

In claim 2, petitioner alleges that the California Board of Parole Hearings (BPH) "arbitrarily disregarded its statutory and regulatory charter in implementing" its parole system to petitioner's prejudice. As to claim 2, respondent is correct that petitioner's claim that he is entitled to relief based on a state law violation is not cognizable. Respondent's supplemental brief, p. 2, citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475 (1991). The Supreme Court, as noted in the February 3, 2011 order, re-affirmed that "'federal habeas corpus relief does not lie for errors of state law.'" Swarthout, 131 S. Ct. at 861, quoting Estelle (id., 502 U.S. at 67) [internal citation omitted].

There being no basis upon which petitioner could proceed at this point, the petition should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that 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 file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Gregory G. Hollows


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