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Edward Hernandez v. M. D. Mcdonald

March 13, 2012

EDWARD HERNANDEZ, PETITIONER,
v.
M. D. MCDONALD, WARDEN, RESPONDENT.



The opinion of the court was delivered by: James V. Selna United States District Judge

ORDER SUMMARILY DISMISSING PAROLE HABEAS ACTION PURSUANT TO SWARTHOUT v. COOKE

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides in part that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." Because both of Petitioner's challenges to his recent seven-year denial of parole plainly lack merit, the Court will dismiss the action summarily.

I.

INTRODUCTION

Petitioner Edward Hernandez is serving a lengthy prison sentence following his 1989 murder conviction. On April 6, 2009, the Board of Parole Hearings denied Petitioner parole. In 2010 and 2011, Petitioner exhausted a state-habeas challenge to the denial. He now seeks habeas relief from this Court.

He asserts two claims. The first goes to the denial per se. Petitioner asserts, in essence, that the Board made a decision so substantively incorrect that it violated his federal Due Process rights. Second, Petitioner challenges the Board's concurrent decision that he must wait seven years, instead of a shorter span of time, before he will receive renewed parole consideration. A 2008 California law, passed by voters as Proposition 9 and commonly called Marsy's Law, significantly increased the amount of time allowable between a prisoner's denial of parole and the prisoner's next parole hearing. Petitioner's specific argument is that the application of the law to him violates the Ex Post Facto Clause, because Petitioner committed his offense prior to passage of Marsy's Law and because, he asserts, it effectively increases his punishment. All authority known to the Court is to the contrary.

II.

FEDERAL DUE PROCESS CONCERNS ARE VERY LIMITED IN PAROLE CASES

Petitioner's first claim is that his parole denial violates federal law. It does not. The Supreme Court recently decided Swarthout v. Cooke, 562 U.S. __, 131 S. Ct. 859, 178 L. Ed. 2d 732 (2011) (Cooke). Cooke reversed two rulings by the Ninth Circuit granting habeas relief based on a lack of "some evidence" of the inmates' current dangerousness. Cooke said that such a "some evidence" requirement is a state, not federal, requirement and held that "the responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, and is no part of the Ninth Circuit's business." The federal habeas court's inquiry -- in cases, such as this one, in which a prisoner seeks habeas relief based on an alleged violation of the federal Due Process Clause -- is limited to determining whether the prisoner "was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied." Id., citing Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979).

Here, Petitioner was present at his parole hearing, was given an opportunity to be heard, and was provided a statement of reasons for the denial of parole. Petitioner sharply disagrees with those reasons, but "[t]he Constitution does not require more." Greenholtz, 442 U.S. at 16. In light of Cooke, Petitioner presents no cognizable claim for relief based on federal law.

III.

COURTS CONSISTENTLY HAVE REJECTED EX POST FACTO CHALLENGES TO POST-CONVICTION INCREASES IN THE DURATION OF TIME BETWEEN PAROLE HEARINGS

Petitioner's second claim is that it was improper to delay his next parole consideration by seven years pursuant to Marsy's Law, because the law was passed after his commitment offense and, he ...


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