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In Ho Lee v. J.D. Hartley

October 5, 2011


The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge


Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.


Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his 1996 conviction in Los Angeles County Superior Court for attempted murder and other lesser offenses. (Pet. at 1, ECF No. 1.) Petitioner was sentenced to a term of life with the possibility of parole, plus seven years. (Id.)

In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings' (Board) March 12, 2008 decision finding him unsuitable for release on parole. Specifically, Petitioner raises three grounds for relief. Petitioner claims (1) that his due process rights were violated because the Board's decision was not supported by some evidence of his current dangerousness, (2) that the Board of Parole Hearings has a no-parole policy which denies Petitioner the right to a fair hearing, (3) that the decision was based on boilerplate reasons and static factors relating to the commitment offense, and (4) that it is a violation of due process and cruel and unusual punishment to not be released upon the expiration of Petitioner's term.

On November 5, 2008, Petitioner filed a state petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the Board's 2008 decision. (Answer, Ex. 1, ECF No. 13-1.) On January 5, 2009, the Superior Court denied the petition. (Id. at Ex. 2, ECF No. 13-1.) On January 22, 2009, Petitioner filed a state petition with the California Court of Appeals, Second Appellate District. (Id. at Ex. 3, ECF No. 13-2.) The petition was denied on February 10, 2009. (Id. at Ex. 4, ECF No. 13-4.) Finally, Petitioner filed a petition with the Supreme Court of California on February 27, 2009, which was denied on June 10, 2009. (Id. at Exs. 5-6, ECF No. 13-4.)

Petitioner filed the instant petition for writ of habeas corpus on July 7, 2009. Respondent filed an answer to the petition on July 2, 2010, and Petitioner filed a traverse on August 5, 2010.


A. Federal Review of State Parole Decisions

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, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (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, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Wilson v. Corcoran, 131 S.Ct. 13, 16, 178 L. Ed. 2d 276 (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, 131 S.Ct. 859, 861-62, 178 L. Ed. 2d 732 (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, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979).*fn2 Swarthout, 131 S.Ct. at 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 ...

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