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Santiago Venega v. Gary Swarthout

January 3, 2012

SANTIAGO VENEGA,
PETITIONER,
v.
GARY SWARTHOUT,
RESPONDENT.



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

ORDER DISMISSING THE FIRST AMENDED PETITION WITHOUT LEAVE TO AMEND (Doc. 7) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY ORDER DIRECTING THE CLERK TO CLOSE THE CASE

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition 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 August 29, 2011 (doc. 6). Pending before the Court is the first amended petition (FAP), which was filed on September 15, 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).

Here, Petitioner alleges that he is an inmate of the Avenal State Prison (ASP) serving a sentence of fifteen (15) years to life plus seven (7) years for a conviction of second degree murder and robbery with enhancements sustained in 1982 in the Superior Court of the State of California for the County of San Francisco. (FAP 1.) He challenges the denial of parole by California's Board of Parole Hearings (BPH) after a hearing held on April 6, 2010. (Id. at 11:19-21.)

Petitioner raises the following claims in the petition: 1) the BPH violated Petitioner's right to due process of law by relying on the commitment offense because the commitment offense lacked any predictive value concerning Petitioner's suitability for parole; 2) the BPH violated Petitioner's right to due process of law by relying on an unauthorized psychological evaluation of Petitioner; 3) the BPH denied Petitioner's due process rights by finding a lack of insight because such a finding is not part of Cal. Code Regs., tit. 15; 4) the BPH violated Petitioner's rights under Apprendi v. New Jersey and Blakely v. Washington by relying on the psychological evaluation and factors relevant to parole suitability that were not presented to a jury and found true beyond a reasonable doubt; and 5) the BPH violated Petitioner's First Amendment rights by ordering him to attend Alcoholics Anonymous (AA) programs in order to be found suitable for parole. (FAP 4-5.)

Attached to the petition is a transcript of the parole consideration hearing held by the BPH on April 6, 2010. (FAP 117-210.) The transcript reveals that Petitioner attended the hearing with counsel, who made a statement on Petitioner's behalf; Petitioner had an opportunity to review pertinent records before the hearing, answered questions from the BPH under oath, and made a statement in his own behalf. (Id. at 119-20, 124, 125-89, 184-87, 187-89.) Petitioner also attached to the petition a copy of the BPH's statement of reasons for the decision, which was made in Petitioner's presence at the conclusion of the hearing. (Id. at 190-214.)

II. Failure to Allege Cognizable Due Process Claims concerning the Evidence before the Board of Parole Hearings

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 received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.)

Swarthout, 131 S.Ct. 859, 862. The Court concluded that the petitioners had received the process that was due as follows:

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 ...


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