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Martin Barragan-Mendoza v. Steve Moore

June 16, 2011

MARTIN BARRAGAN-MENDOZA, PETITIONER,
v.
STEVE MOORE, WARDEN, RESPONDENT.



FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises a due process challenge to former California Governor Arnold Schwarzenegger's November 16, 2007 reversal of the June 21, 2007 decision by the California Board of Parole Hearings ("Board") to grant petitioner parole. Petitioner also raises a due process challenge to the Board's decision to deny him parole at a subsequent parole consideration hearing held on June 20, 2008. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

I. Procedural Background

Petitioner is confined pursuant to a 1990 judgment of conviction entered against him in the San Mateo County Superior Court on a charge of second degree murder with use of a weapon. (Doc. No. 1 at 1.)*fn1 Pursuant to that conviction, petitioner was sentenced to nineteen years to life in state prison. (Id.)

On June 21, 2007, the Board conducted a parole suitability hearing to determine whether petitioner should be granted a parole date. (Doc. No. 1 at 89.) Petitioner appeared at and participated in that hearing. (Doc. 1 at 91-199; Doc. 1-1 at 1-45.) Following deliberations held at the conclusion of that hearing, the Board panel announced their decision to grant parole to petitioner as well as the reasons for that decision. (Doc. 1-1 at 47-61.) However, on November 16, 2007, Governor Schwarzenegger reversed the Board's decision with a written statement of reasons for his decision to deny petitioner parole. (Id. at 152-56.)

Petitioner challenged the Governor's reversal in a petition for writ of habeas corpus filed in the San Mateo County Superior Court. (Doc. 14, Ex. 1.) That petition was denied in a reasoned decision dated January 17, 2008. (Id., Ex. 2.) Subsequently, petitioner challenged the Governor's decision to deny him parole in a January 23, 2008 petition for writ of habeas corpus filed in the California Court of Appeal for the First Appellate District. (Id., Ex. 3.) By order dated April 30, 2008, the respondent was ordered to show cause why that petition should not be granted. (Id., Ex. 4.) Respondent filed a return on October 8, 2008. (Id., Ex. 5.) Petitioner filed a traverse on December 16, 2008. (Id., Ex. 6.) Subsequently, the California Court of Appeal denied the January 23, 2008 habeas petition in a reasoned decision on the merits of petitioner's claims. (Id., Ex. 7.) On July 20, 2009, petitioner filed a petition for review in the California Supreme Court. (Id., Ex. 8.) That petition was summarily denied by order dated September 30, 2009. (Id., Ex. 9.)

In the meantime, on June 20, 2008, the Board conducted another parole suitability hearing to determine whether petitioner should be granted a parole date. (Doc. No. 1-1 at 65.) Petitioner again appeared at and participated in that hearing. (Id. at 68-137.) At the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for two years as well as the reasons for that decision. (Id. at 138-49.)

Petitioner challenged the Board's 2008 decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the First Appellate District. (Doc. 15, Ex. 1.) On February 6, 2009, the California Court of Appeal ordered the respondent to show cause why that petition should not be granted. (Id., Ex. 2.) Respondent filed a return to the order to show case on February 27, 2009. (Id., Ex. 3.) Petitioner subsequently filed a traverse. (Id., Ex. 4.) In an opinion dated June 10, 2009, the California Court of Appeal denied the petition for writ of habeas corpus in a reasoned decision on the merits of petitioner's claims. (Id., Ex. 5.) Petitioner subsequently filed a petition for review in the California Supreme Court, which was summarily denied by order dated September 30, 2009. (www.courtinfo.ca.gov -docket sheet for case No. S174736.)

On November 25, 2009, petitioner filed his federal application for habeas relief in this court. Therein, petitioner contends that the Governor's reversal of the Board's 2007 decision granting him parole violated his right to due process because it was not supported by "some evidence" that he posed a current danger to society if released. Petitioner also argues that the Board's subsequent 2008 decision finding him unsuitable for parole violated his right to due process because it too was not supported by "some evidence" that he posed a current danger to society if released as required under California law.

II. Scope of Review Applicable to Due Process Challenges to the Denial of Parole The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).

A protected liberty interest may arise from either the Due Process Clause of the United States Constitution "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). However, a state's statutory scheme, if it uses mandatory language, "creates a presumption that parole release will be granted" when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest. Greenholtz, 442 U.S. at 12. See also Allen, 482 U.S. at 376-78.

California's parole scheme gives rise to a liberty interest in parole protected by the federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002); see also Swarthout v. Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 861-62 (2011) (finding the Ninth Circuit's holding in this regard to be a reasonable application of Supreme Court authority); Pearson v. Muntz, 639 F.3d 1185, ___, 2011 WL 1238007, at *4 (9th Cir. Apr. 5, 2011) ("[Swarthout v.] Cooke did not disturb our precedent that California law creates a liberty interest in parole.") In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002).

In Swarthout, the Supreme Court reviewed two cases in which California prisoners were denied parole - in one case by the Board, and in the other by the Governor after the Board had granted parole. Swarthout, 131 S. Ct. at 860-61. The Supreme Court noted that when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment requires fair procedures, "and federal courts will review the application of those constitutionally required procedures." Id. at 862. The Court concluded that in the parole context, however, "the procedures required are minimal" and that the "Constitution does not require more" than "an opportunity to be heard" and being "provided a statement of the reasons why parole was denied." Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit decisions that went beyond these minimal procedural requirements and "reviewed the state courts' decisions on the merits and concluded that they had unreasonably determined the facts in light of the evidence." Swarthout, 131 S. Ct. at 862. In particular, the Supreme Court rejected the application of the "some evidence" standard to parole decisions by the California courts as a component of the federal due process standard. Id. at 862-63. See also Pearson, 2011 WL 1238007, at *4.*fn2

III. Petitioner's Claims

As noted above, petitioner seeks federal habeas relief on the grounds that former Governor Arnold Schwarzenegger's November 16, 2007 reversal of the June 21, 2007 decision by the California Board of Parole Hearings ("Board") to grant him parole, and the Board's June 20, 2008 decision finding him unsuitable for parole, as well as the findings upon which those decisions were based, violated his right to due process because they were not supported by "some evidence" that he posed a current danger to society if released, as required under California law. However, under the Supreme Court's decision in Swarthout this court may not review whether California's "some evidence" standard was correctly applied in petitioner's case. 131 S. Ct. at 862-63; see also Miller v. Oregon Bd. of Parole and Post-Prison Supervision, ___F.3d___, 2011 WL 1533512, at *5 (9th Cir. Apr. 25, 2011) ("The Supreme Court held in [Swarthout v.] Cooke that in the context of parole eligibility decisions the due process right is procedural, and entitles a prisoner to nothing more than a fair hearing and a statement of reasons for a parole board's decision[.]"); Roberts v. Hartley, 640 F.3d 1042, ___, 2011 WL 1365811, at *3 (9th Cir. Apr. 12, 2011) (under the decision in Swarthout, California's parole scheme creates no substantive due process rights and any procedural due process requirement is met as long as the state provides an inmate seeking parole with an opportunity to be heard and a statement of the reasons why parole was denied); Pearson, 2011 WL 1238007, at *3 (9th Cir. Apr. 5, 2011) ("While the ...


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