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Ellis E. Johnson v. Matthew Cate

November 2, 2012

ELLIS E. JOHNSON, PETITIONER,
v.
MATTHEW CATE, ET AL.,
RESPONDENTS.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

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. Petitioner has filed an application to proceed in forma pauperis.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Petitioner raises three claims challenging his 2011 parole suitability hearing conducted by the Board of Parole Hearings ("BPH"): 1) the BPH improperly found him unsuitable on grounds that he failed to speak about the crime; 2) the BPH failed to give individualized consideration regarding a rule infraction for cell phone possession; and 3) the decision by the BPH in 2011 to apply Marsy's Law violated the Ex Post Facto Clause and breached petitioner's plea agreement.

For the following reasons, this action should be 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. Claims One and Two

In claim one, petitioner argues that the BPH improperly found him unsuitable because he did not speak about his crime. At the suitability hearing, petitioner maintained that he could not remember much of his crime because he blacked out. (Dkt. No. 1 at 46.) In the statement of decision, Presiding Commissioner Prizmich stated that petitioner's inability to remember his crime suggested that he had not done enough "insightful work":

Mr. Johnson, there are a number of factors we look into. And one of them that I want to speak of, you didn't speak of the crime today, but basically your commentary in the past that we looked at was that you essentially had a blackout and don't remember a whole lot. And that's very unusual when somebody has a blackout to that degree where they completely can't remember anything. So that gave us concern because it prevents an, you know, an individual to kind of look -- if you can hold on one sec. Mr. Cannon, could you mute your end, sir? Thank you. So that is something that is of concern. It didn't weigh heavily on our decision today, but typically when people do the kind of insightful work themselves they look into the crime, and they do have greater recollection than you may first think...Again, it didn't weight heavily in our decision, but it was of some concern...

(Id. at 114-15.)

In claim two, petitioner alleges that the BPH failed to give individualized consideration regarding his disciplinary conviction for cell phone possession.

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." ...


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