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Vincent Robert Paseri v. Domingo Uribe

November 26, 2012

VINCENT ROBERT PASERI, PETITIONER,
v.
DOMINGO URIBE, JR., WARDEN RESPONDENT.



The opinion of the court was delivered by: Honorable Philip S. Gutierrez United States District Judge

O

MEMORANDUM AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

I. INTRODUCTION

Petitioner is a California state prisoner currently incarcerated at Centinela State Prison. He filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 5, 2012. Petitioner contends that his due process rights were violated when he was denied parole following a hearing on November 30, 2010. In light of Swarthout v. Cooke, __ U.S. __, 131 S. Ct. 859, 178 L. Ed. 2d 732 (2011) (per curiam), the Court finds that the petition must be dismissed because petitioner cannot demonstrate that his federal due process rights were violated or that any state court decision was contrary to or involved an unreasonable application of clearly established Supreme Court law.

II. BACKGROUND

Petitioner was convicted in 1991 of first degree murder and of assault with a deadly weapon and force likely to produce great bodily injury. Pet. at 2.*fn1 He was sentenced to twenty-five years to life in prison. Id.

Following a hearing held on November 30, 2010 before the Board of Parole Hearings, petitioner was denied parole in a decision that became final on March 30, 2011. Pet. at 72, 128, 133. Petitioner challenged that decision in a series of habeas petitions filed in the state courts. Pet. at 59-70.

The Superior Court denied his petition in a reasoned decision issued on March 5, 2012. Pet. at 60-64. The Superior Court found that, contrary to petitioner's contentions, the Board's decision denying him parole was supported by "some evidence." Pet. at 60-63. The Superior Court also found that petitioner's due process rights under the United States Constitution were not violated, as petitioner was present at his parole hearing, was given a right to be heard, and was told the reasons parole was denied. Pet. at 64. The California Court of Appeal and California Supreme Court denied his petitions without comment. Pet. at 68, 70.

In the instant federal Petition, petitioner raises one ground for relief: that his due process rights "were violated when the Board of Parole Hearing's personnel did not follow their own rules, when finding petitioner unsuitable for parole, during his November 30th, 2010 BPH; which relief on the unchanging factors of the circumstances of the crime." Pet. at 5.

On October 12, 2012, this Court issued an Order to Show Cause why the Petition should not be denied in light of Swarthout v. Cooke. Petitioner responded to the Order to Show Cause on November 13, 2012.

III. DISCUSSION

Petitioner claims that the Board of Parole Hearings violated his federal constitutional right to due process by not following its own rules so as to deny him parole in a situation in which petitioner contends parole was mandated by statute. Petitioner suggests that in Greenholtz v. Inmates of Neb. Penal and Corrections Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), the Supreme Court afforded courts a basis to find a prisoner's federal due process rights have been violated when a state fails to follow its own statutory scheme that mandates parole when certain conditions are met. In fact, however, the Supreme Court rejected that very argument in Greenholtz. See id. at 7-16.

The Supreme Court's more recent decision in Swarthout v. Cooke clearly disposes of petitioner's claim. There, the Supreme Court held that even if a California prisoner has a state-created liberty interest in parole, the only federal due process to which a California prisoner challenging the denial of parole is entitled is the minimal procedural due process protections set forth in Greenholtz, 442 U.S. at 16 (i.e., an opportunity to be heard, and a statement of reasons for the denial). Cooke, 131 S. Ct. at 861-62. The Supreme Court observed that, where the records reflect that the prisoners were allowed to speak at the hearings and to contest the evidence, were afforded access to their records in advance, and were notified as to the reasons why parole was denied, "[t]hat should have been the beginning and the end of the federal habeas courts' inquiry into whether [the prisoners] received due process." See id. at 862. Under the Supreme Court's decision in Cooke, "it is no federal concern . . . whether California's 'some evidence' rule of judicial review (a procedure beyond what the Constitution demands) was correctly applied." See id. at 862-63.

Here, petitioner is not claiming that he was denied the minimal procedural due process protections set forth in Greenholtz. Indeed, the record submitted by petitioner -- which includes a portion of the hearing transcript (only the odd-numbered pages) and other documents -- reflects that petitioner was allowed to speak at the parole consideration hearing and to contest the evidence, was represented by counsel, and was notified as to the reasons why parole was ...


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