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Clement Brown v. Ken Clark

May 31, 2011

CLEMENT BROWN,
PETITIONER,
v.
KEN CLARK, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on October 13, 2010. Respondent answered the petition on February 15, 2011. Petitioner did not file a traverse.

I. Jurisdiction

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).

Petitioner alleges that he was an inmate of the California Substance Abuse Treatment Facility and State Prison at Corcoran, California (CSATF), serving a sentence of twenty-six (26) years to life imposed by the Orange County Superior Court after Petitioner was convicted of first degree murder in October 1985. (Pet. 1.) Petitioner claims that he suffered violations of his constitutional rights when he was found unsuitable for parole by the California Board of Parole Hearings (BPH) after a hearing held on January 12, 2010, at the CSATF. (Pet. 5) Thus, violations of the Constitution are alleged. Further, the decision challenged was made at Corcoran, California, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).

Respondent Ken Clark answered the petition. (Doc. 12, 1.) Petitioner thus named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Accordingly, the Court concludes that it has jurisdiction over the proceeding and over the Respondent.

II. Failure to Allege a Cognizable Due Process Claim

A. Background

Petitioner alleges that his right to due process of law guaranteed by the Fourteenth Amendment was violated by the BPH's decision finding him unsuitable for parole for three years because the decision was not supported by some evidence of dangerousness. Petitioner argues that the BPH's reliance on the commitment offense and Petitioner's disciplinary history in prison to support the finding that Petitioner presented a danger if released failed to comply with California case law requiring an explicit articulation of a rational nexus between the evidence and the finding of dangerousness. Petitioner argues that his exemplary conduct in prison, favorable psychiatric recommendation, and comprehensive parole plans demonstrated that he was no longer dangerous and merited a grant of parole. (Pet. 5-17.)

The transcript of the hearing held on January 12, 2010, reflects that Petitioner was present at the parole hearing (pet. 21, 24, 21-110), received records before the hearing and was given an opportunity to correct or clarify the record (pet. 26, 28), testified under oath concerning numerous factors of parole suitability (pet. 30-87), and made a statement to the BPH in favor of parole (pet. 95-97). An attorney for Petitioner appeared at the hearing, advocated on Petitioner's behalf, and made a closing statement in favor of finding Petitioner suitable for parole. (Pet. 24, 27-30, 89-94.)

Further, Petitioner was present when the commissioners stated the reasons for the BPH's denial of parole for three years, which included the nature and circumstances of the commitment offense, Petitioner's disciplinary history in prison, prior criminality, drug and alcohol use, unstable social history, age, and the prosecutor's opposition to release. (Pet. 99-110.)

B. Analysis

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 ...


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