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James A. Kennedy v. Teri Gonzalez


June 6, 2011


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


Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2009 decision by the governor reversing the California Board of Parole Hearings (BPH) finding that found plaintiff suitable for parole.

On January 24, 2011, the United States Supreme Court in a per curiam decision 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. ___, 131 S. Ct. 859, 861 (2011). Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed that "'federal habeas corpus relief does not lie for errors of state law.'" Id. While the high court found that the Ninth Circuit's holding that California law does create a liberty interest in parole was "a reasonable application of our cases" (while explicitly not reviewing that holding),*fn1 the Supreme Court stated:

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.

Swarthout v. Cooke, at 862.

Citing Greenholtz,*fn2 the Supreme Court noted it had found under another state's similar parole statute that a prisoner had "received adequate process" when "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout v. Cooke, at 862. Noting their holding therein that "[t]he Constitution [] does not require more," the justices in the instances before them, found the prisoners had "received at least this amount of process: They 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." Id.

The Supreme Court was emphatic in asserting "[t]hat should have been the beginning and the end of the federal habeas courts' inquiry...." Swarthout v. Cooke, at 862. "It will not do to pronounce California's 'some evidence' rule to be 'a component' of the liberty interest...." Id., at 863. "No opinion of ours supports converting California's "some evidence" rule into a substantive federal requirement." Id., at 862. Thus, there is no federal due process requirement for a "some evidence" review and federal courts are precluded from review of the state court's application of its "some evidence" standard.*fn3 Petitioner's claim concerning the "some evidence" standard should therefore be dismissed.

Petitioner also raises a claim that the parole denial was improper because it relied on his status as a recovering drug addict. However, this claim has no merit. In Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002), the Ninth Circuit noted:

[t]he parole board undeniably has a legitimate penological interests in considering the plaintiffs' substance abuse backgrounds during the individualized inquiry for parole suitability. We hold only that plaintiffs may state a claim under Title II based on their allegations that the parole board failed to perform an individualized assessment of the threat they pose to the community by categorically excluding from consideration for parole all people with substance abuse histories.

Thompson, 295 F.3d 890 at 898 n. 4. In the instant case, the governor's denial set forth an individualized assessment of the threat posed by petitioner with specific examples regarding his substance abuse history and statements while in prison. Petition at 41-43. This claim is meritless.

Petitioner's due process argument that he was not allowed to be heard by the governor prior to the denial is also meritless in light of Swarthout which reviewed two companion cases, one of which was a denial by the governor. Moreover, "[t]he fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976) (citation omitted). Due process requires consideration of three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335.

The issue is whether the hearing accorded is meaningful, not whether the hearing was held before the authority with final responsibility to determine a discharge or, in this case, denial of parole. Bates v. Sponberg, 547 F.2d 325, 332 (6th Cir. 1976) (finding no due process violation where although terminated professor was denied hearing before the Board of Regents and the Board failed to review the record prior to discharging him, he appeared before faculty grievance committee and presented evidence). See also Tigrett v. Rector and Visitors of the University of Virginia, 290 F.3d 620, 629-30 (4th Cir. 2002) (following Bates). Similarly, there is no due process violation in revoking a physician's license where the Board's decision is made without its own hearing because it is based on an ALJ's written report after a hearing is provided. Guerrero v. State of New Jersey, 643 F.2d 148, 149-150 (3rd Cir. 1981).*fn4 Furthermore, it is not required that the deciding body personally read the record; rather it may consider and appraise the evidence by reviewing a summary or analysis of it prepared by subordinates. Bates, 547 F.2d at 332.

In the instant case, the Matthews factors were satisfied as the governor's denial set forth a detailed report demonstrating a thorough analysis of the evidence and facts set forth in the BPH hearing. This claim should be denied.

Petitioner's motion to stay this case in order to exhaust his state remedies with respect to claims that would be meritless on federal review is also denied for the reasons discussed above.

Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this case.


1. The motion to stay (Doc. 3) and the motion for judicial notice (Doc. 6) be denied;

2. This petition be dismissed.

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, petitioner may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is 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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