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Arprubertito v. Gary Swarthout

April 6, 2012


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


Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c), see Docket #4, and no other party has appeared.

Petitioner pled guilty to second degree murder and was sentenced to a term of fifteen years to life in 1998. Petition, pp. 1, 5. Petitioner challenges the 2010 decision*fn1 by the California Board of Parole Hearings (BPH) finding him unsuitable for parole at his initial parole consideration hearing. See Petition. Petitioner frames his challenge as follows: "[t]here was no evidence to support the Board's determination of petitioner's current dangerousness[,] violating state Supreme Court holdings and violating state and federal constitutions' equal protection clauses." Id., at 5.

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),*fn2 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,*fn3 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.

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 it also appears that federal courts are precluded from review of the state court's application of its "some evidence" standard.

Petitioner strives mightily and sincerely to preclude the application of Swarthout v. Cooke's holding to his challenge. Petitioner states that he is not contending that the BPH "committed an error of law." Petition, p. 14. Rather, petitioner contends that his Fifth and Fourteenth Amendment due process rights and his Fourteenth Amendment equal protection rights have been violated by the BPH having deprived petitioner "of fair procedures for its vindication of clear and convincing evidence under the preponderance of the evidence test that he remains a current danger to society through the statutes." Id. Petitioner argues that the Supreme Court in Swarthout did not abrogate prior law requiring the BPH "to establish by clear and convincing evidence by a preponderance of the evidence [sic], facts and precedent case law that petitioner is a current risk of danger and would pose an unreasonable risk of danger to society ..." if released on parole. Id., at 16. For example, petitioner contends that the BPH's use of "his two non violent disciplinaries over the past fifteen years" did not warrant a determination that he was unsuitable for parole." Id., at 24-25. However, petitioner's challenge to the evidence and factors as weighed by the BPH in finding him unsuitable for parole is precisely what this court is foreclosed from considering post-Swarthout v. Cooke, 131 S. Ct. 859. Petitioner does not contend that he was denied an "opportunity to be heard" and/or that he was not "provided a statement of the reasons why parole was denied." Indeed, the court's review of the copy of the transcript of the November 17, 2010 hearing submitted by petitioner reveals that petitioner was granted ample opportunity to be heard: he was provided an interpreter (for Tagalog); he had counsel and he, himself, at points spoke at length, apparently without the assistance of the interpreter. See Petition (docket # 1)(2010 parole hearing transcript), pp. 40-100 through docket # 1-1, pp. 1-27. It is also indisputable that petitioner was provided a statement of reasons for the denial decision. Docket # 1-1, pp. 17-27. There being no basis on which this petition could proceed, this case should be dismissed.

Accordingly, IT IS HEREBY ORDERED that the habeas petition be denied. Judgment should be entered for respondent. A certificate of appealability may issue under 28 U.S.C. ยง 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 ...

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