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Thomas Porter v. James D. Hartley

December 12, 2011


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


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. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on November 14, 2011 (doc. 11). Pending before the Court is the petition, which was filed on November 7, 2011.

I. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

II. Background

Petitioner alleges that he is an inmate of the Avenal State Prison (ASP) serving a sentence of fifteen years to life imposed by the Kern County Superior Court pursuant to his conviction of second degree murder on August 2, 1989. Petitioner challenges the decisions of California state courts upholding the decision of the governor of California to reverse a grant of parole after a hearing held before California's Board of Parole Hearings (BPH) on November 3, 2009. Petitioner raises the following claims: 1) the decision violated due process rights because it was not supported by any evidence; 2) the decision was made in violation of the minimal procedural protections guaranteed by the Due Process Clause because Petitioner was not permitted to be present or to have an opportunity to be heard by the governor; 3) the decision was arbitrary and unconstitutionally predetermined in violation of the Fourteenth's Amendment Due Process Clause because it was unsupported by any evidence, based on mere disagreement, and issued from a governor who reversed seventy-three (73) per cent of the BPH's grants of parole; 4) pursuant to California statutory law and federal constitutional law, the decision to grant parole is final 120 days after the BPH makes its decision, and the governor is not authorized to review the decision without holding a new hearing. (Pet. 3-4, 10-13.)

Petitioner alleges that all his procedural protections were adhered to by the BPH in all the proceedings before it. (Pet. 10:17-19.) Petitioner quotes part of a statement of reasons for the BPH's decision to grant parole which states that the BPH found "no other factors to preclude" Petitioner's suitability. (Id. at 10:20-21.) The reasonable conclusion to be drawn from Petitioner's allegations is that Petitioner had access to his records before the hearing, attended the hearing before the BPH and had an opportunity to be heard, and received a statement of reasons for the decision on parole. Petitioner further alleged that on April 2, 2010, the governor sent Petitioner a letter in which the governor stated that he had invoked his authority to reverse the BPH's grant of parole after considering the same factors as the BPH considered. (Id. at 11:1-6.) It thus appears that Petitioner received a statement of reasons for the governor's decision.

III. Failure to Allege a Claim Cognizable on Habeas Corpus

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).

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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