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Jerry June Claborn v. Gary Swarthout

September 15, 2011

JERRY JUNE CLABORN, PETITIONER,
v.
GARY SWARTHOUT, WARDEN, RESPONDENT.



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

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.*fn1

Petitioner has consented to the jurisdiction of the undersigned. Docket # 8. Petitioner was convicted of kidnapping for rape with use of a deadly weapon, rape with force and threat, and robbery, after a jury trial in Los Angeles County Superior Court in 1979, and sentenced to state prison term of seven years to life plus one year, or eight-years-to-life. Petition, pp. 2-3; Docket # 1-2, August 3, 2009 Parole Hearing Transcript, p. 37.*fn2 Petitioner challenges the 2009 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole at a subsequent parole consideration hearing. Docket # 1-2, August 3, 2009 Parole Hearing Transcript, pp. 35-100-docket # 1-3, pp. 1-13.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Petitioner raises the following grounds: 1) BPH violated Cal. Penal Code § 5011 by denying parole; 2) BPH had no evidence to justify a finding that petitioner needed more therapy; 3) BPH erred in finding the latest psychological evaluation constituted a basis for parole denial; 4) there is no evidence of any nexus between the factors cited BPH to deny parole and public safety; 5) parole denial based on unchanging factors is violative of due process; 6) BPH Commissioners Gillingham and Blonien violated the Ex Post Facto Clause of both the federal and state constitutions by denying petitioner parole based on petitioner's concurrent sentence for rape; 7) Due Process violation by Commissioners Gillingham and Blonien when petitioner's psychological evaluation was used to deny him parole. Petition, pp. 6-12.

As to claim 1,wherein petitioner contends that the BPH violated Cal. Penal Code § 5011 because he denied committing a juvenile rape offense*fn3 and because the panel did not believe his motive for his commitment offense,*fn4 petitioner does not set forth a colorable ground. Petition, pp.6, 9. Under Cal. Penal Code § 5011(b), the BP[H] "shall not require, when setting parole date, an admission of guilt to any crime for which an inmate was committed." Even assuming petitioner's BPH panel violated this provision, it does not rise to the level of a federal constitutional violation. A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis of some transgression of federal law binding on the state courts. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is unavailable for alleged error in the interpretation or application of state law. Middleton v. Cupp, 768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178 (1972).

The Supreme Court has reiterated the standards of review for a federal habeas court. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991). In Estelle v. McGuire, the Supreme Court reversed the decision of the Court of Appeals for the Ninth Circuit, which had granted federal habeas relief. The Court held that the Ninth Circuit erred in concluding that the evidence was incorrectly admitted under state law since, "it is not the province of a federal habeas court to re-examine state court determinations on state law questions." Id. at 67-68, 112 S. Ct. at 480. The Court re-emphasized that "federal habeas corpus relief does not lie for error in state law." Id. at 67, 112 S. Ct. at 480, citing Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092, 3102 (1990), and Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874-75 (1984) (federal courts may not grant habeas relief where the sole ground presented involves a perceived error of state law, unless said error is so egregious as to amount to a violation of the Due Process or Equal Protection clauses of the Fourteenth Amendment).

The Supreme Court further noted that the standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted)." Id. at 68, 112 S. Ct. at 480. The Court also stated that in order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness," Id. at 73, 112 S. Ct. at 482, and that "we 'have defined the category of infractions that violate "fundamental fairness" very narrowly.'" Id. at 73, 112 S. Ct. at 482. Habeas review does not lie in a claim that the state court erroneously allowed or excluded particular evidence according to state evidentiary rules. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). While a parole board's requiring an admission of guilt for the commitment offense at a prisoner's parole hearing may violate state law,*fn5 petitioner has cited no authority set forth by the United States Supreme Court that such a requirement implicates either the due process or equal protection clauses of the Fourteenth Amendment.*fn6 The state court's denial of this claim was not an unreasonable application of clearly established Supreme Court authority,*fn7 and it will be denied.

As to claims 2, 3, 4, 5, and 7, 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, ___ 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),*fn8 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,*fn9 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. In this instance, the court's review of the August 3, 2009 parole hearing transcript petitioner has provided demonstrates unequivocally that he was both provided and opportunity to be heard and a statement of reasons why parole was denied, which petitioner does not dispute.

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, it appears there is no federal due process requirement for a "some evidence" review and ...


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