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Charles Coming v. Gary Swarthout

July 20, 2012

CHARLES COMING, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 11, 2012, petitioner consented to the jurisdiction of the undersigned.

The petition raises three claims. First, petitioner alleges that the 2011 decision by the California Board of Parole Hearings ("BPH") finding him unsuitable for parole was not supported by sufficient evidence in violation of his right to due process. Second, petitioner alleges that the BPH's 2011 decision to conduct his next suitability hearing in three years violated the Ex Post Facto Clause. Third, petitioner alleges that the Superior Court did not adequately review his claims.

For the following reasons, this action is dismissed because petitioner is not entitled to relief. Rule 4 of Federal Rules Governing Section 2254 Cases (if it appears from petition that petitioner is not entitled to relief, the court may dismiss the petition).

II. Discussion

A. Claim One -- Due Process

Petitioner argues that the BPH's 2011 decision finding him unsuitable for parole was not supported by sufficient evidence in violation of his right to due process. Petitioner argues that the BPH improperly relied on a rules violation report from 2008. Petitioner also argues that the BPH improperly found that he lacked insight. Petitioner also argues that the BPH improperly characterized his self-help and vocational record.

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause, and then show that the procedures used to effect the deprivation were not constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).

A protected liberty interest may arise from the Due Process Clause of the United States Constitution either "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). However, "a state's statutory scheme, if it uses mandatory language, 'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest."

Greenholtz, 442 U.S. at 12; seealso Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a state's use of mandatory language ("shall") creates a presumption that parole release will be granted when the designated findings are made.).

California's parole statutes give rise to a liberty interest in parole for which "the Due Process Clause requires fair procedures for its vindication." Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal. 4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that "[n]o opinion of [theirs] supports converting California's 'some evidence' rule into a substantive federal requirement." Swarthout, 131 S. Ct. at 862-63. In other words, the Court specifically rejected the notion that there can be a valid claim under the Fourteenth Amendment for insufficiency of evidence presented at a parole proceeding. Id. Rather, the protection afforded by the federal due process clause to California parole decisions consists solely of the "minimal" procedural requirements set forth in Greenholtz, specifically "an opportunity to be heard and . . . a statement of the reasons why parole was denied." Id. at 862-63. These considerations constitute "the beginning and the end of the federal habeas court's inquiry into whether [a petitioner] received due process" before a parole board. Id. at 862.

Petitioner submitted a transcript from the at-issue 2011 parole suitability hearing. (Dkt. No. 7.) This transcript indicates that petitioner had an opportunity to be heard and was given a statement of reasons why parole was denied. (Id.) According to the United States Supreme Court, the federal ...


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