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Liber R. andrade v. Kathleen Allison

May 12, 2011

LIBER R. ANDRADE,
PETITIONER,
v.
KATHLEEN ALLISON,
RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING PETITIONER'S MOTION TO AMEND PETITION (DOC. 5)

ORDER DIRECTING THE CLERK TO CHANGE THE NAME OF THE RESPONDENT TO KATHLEEN ALLISON

ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 4)

ORDER DISMISSING THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1)

ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

ORDER DIRECTING THE CLERK TO CLOSE THE CASE

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on July 1, 2010 (doc. 3).

Pending before the Court is the petition, which was filed on June 22, 2010, as well as Petitioner's motion to amend the petition to name a proper respondent, which was filed on February 18, 2011.

I. Amendment of the Petition

Pending before the Court is Petitioner's motion to amend the petition to name a proper respondent, which was filed in response to the Court's order of January 21, 2011, granting Petitioner leave to file the motion.

Petitioner requests that Kathleen Allison, the warden at Petitioner's institution of confinement, be named as Respondent in this matter.

A petitioner seeking habeas relief must name the state officer having custody of him or her as the respondent to the petition. Rule 2(a) of the Rules Governing Section 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of the prisoner is the warden of the prison because the warden has "day to day control over" the prisoner. Brittingham v. United States, 982. F.2d 378, 279 (9th Cir. 1992). Therefore, Petitioner's request is proper.

Accordingly, Petitioner's motion for leave to amend the petition to name Kathleen Allison as Respondent in this matter will be granted, and the Clerk will be directed to change the name of the Respondent to Kathleen Allison.

II. Discharge of the Order to Show Cause On January 21, 2011, the Court ordered Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies.

In response to the Court's order, Petitioner filed a copy of the petition for writ of habeas corpus that he filed in the California Supreme Court. (Doc. 6.) The document reflects that the claims which Petitioner raises in the petition before the Court were presented to the California Supreme Court.

Accordingly, the order to show cause that issued on January 21, 2011, will be discharged.

III. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

IV. Background

Petitioner alleged in the petition that he was an inmate of the California Substance Abuse Treatment Facility (CSATF) at Corcoran, California, serving a sentence of fifteen (15) years to life plus two (2) years imposed by the Contra Costa County Superior Court upon Petitioner's conviction in January 1982 of second degree murder and assault with a deadly weapon in violation of Cal. Pen. Code §§ 187, 245, and 12022.5. (Pet. 1.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) finding Petitioner unsuitable for parole made after a hearing held on May 23, 2007, and state court decisions denying habeas corpus relief with respect to the BPH's decision. (Pet. 4, 133-43.)

Petitioner raises the following claims: 1) the BPH's decision violated Petitioner's right to due process of law under the state and federal constitutions because the decision lacked the support of some evidence that Petitioner was currently a threat to society; 2) the decision violated Petitioner's right to due process of law because Petitioner's right to a neutral hearing body was infringed by the presence on the BPH of law enforcement officers, who Petitioner alleges are normally biased by their training; 3) the BPH's decision violated Petitioner's right to due process of law because Petitioner had a right to a jury trial concerning factors inherent to the death penalty statutes; and 4) Petitioner has a protected liberty interest in parole based on the mandatory language of California's parole statutes. (Pet. 4-5.)

Petitioner submitted the transcript of the parole hearing held on May 22, 2007. (Pet. 18-105). Review of the transcript reveals that Petitioner attended the hearing (pet. 18, 20), acknowledged his right to review his central file and to present documents (pet. 26), addressed the board concerning numerous factors of parole suitability (pet. 32-78), and made a personal statement in favor of parole (pet. 99-100). An attorney appeared with Petitioner, advocated on his behalf, and made a closing statement in favor of parole. (Pet. 18, 24, 26, 28-29, 31, 84-87, 92-99.)

Petitioner was also present when the BPH stated its reasons for finding Petitioner unsuitable for parole, which included the nature of the commitment offense, multiple innocent victims, Petitioner's focus on the effect the crime had on him instead of the effect it had on the victims, and the district attorney's opposition to release. (Pet. 101-05.)

V. Failure to State a Cognizable Due Process Claim concerning the Absence of Some Evidence to Support the Board's Finding of Danger

Petitioner complains that the denial of parole violated Petitioner's right to due process of law under the state and federal constitutions because the decision lacked the support of some evidence that Petitioner was currently a threat to society. Petitioner contends that the BPH's reliance on the commitment offense as a basis for denial of parole was flawed. (Pet. 4, 7-9).

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures with respect to the liberty interest. Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011).

However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979). *fn1

Swarthout v. Cooke, 131 S.Ct. 859, 862. In Swarthout, the Court rejected inmates' claims that they were denied a liberty interest because there was an absence of "some evidence" to support the decision to deny parole. The Court stated:

There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication--and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California's received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.)

Swarthout, 131 S.Ct. 859, 862. The Court concluded that the petitioners had received the ...


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