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Demetris Ducksworth v. Gary Swarthout

April 11, 2013


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. Petitioner challenges the 2011 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole.

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),*fn1 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,*fn2 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. The Ninth Circuit recently noted that in light of Swarthout v. Cooke, certain Ninth Circuit jurisprudence had been reversed and "there is no substantive due process right created by California's parole scheme." Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011). Thus, there is no federal due process requirement for a "some evidence" review and federal courts are precluded from review of the state court's application of its "some evidence" standard.

Petitioner raises four claims in the instant petition. He first claims that the BPH violated the Double Jeopardy Clause and that res judicata prevents this result, because the BPH found him unsuitable for parole at its 2011 hearing when it had previously found him suitable for parole at his 2010 hearing. This claim is not foreclosed by Swarthout; however, the legal theories proposed by petitioner, although creative, are without merit. First, res judicata will not assist petitioner.

Article 5, § 8(b) of the California constitution provides:

(b) No decision of the parole authority of this state with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.

The statutory procedures controlling the Governor's review are found in Cal.

Penal Code § 3041.2 which provides for review of a parole authority's decision regarding parole within thirty days thereafter, and if he reverses the parole board's decision, he must provide to the prisoner a written statement specifying his reasons. The decision of the BPH is not final for thirty days, until the Governor has had the opportunity to review the decision. Henson v. Davison, 2010 WL 2264931, *1 (C.D. Cal. Apr. 21, 2010).

Here, although the BPH found petitioner suitable for parole in 2010, under California law, the governor has the option to review and reverse that decision, and his decision is the final decision for that particular parole eligibility proceeding. Therefore, res judicata will not assist petitioner because the final decision after the Governor's review was adverse to petitioner.

Petitioner's claim of double jeopardy is also meritless. Under the Double Jeopardy Clause, no person shall be "subject for the same offence to be twice put in jeopardy of life or limb ..." U.S. Const. Amend. V. The Double Jeopardy Clause "protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense." Monge v. California, 524 U.S. 721, 727--28, 118 S.Ct. 2246, 2250 (1998). The BPH's 2011 decision did not pertain to an offense or crime and the 2010 parole decision was not a previous criminal offense for which petitioner was acquitted or convicted. Both the 2010 and 2011 BPH decisions were administrative determinations and not criminal proceedings. See Alessi v. Quinlan, 711 F.2d 497, 501 (2d Cir.1983) (finding that denial of parole "is neither the imposition nor the increase of a sentence, and it is not punishment for purposes of the Double Jeopardy Clause..."); Williams v. Finn, 289 F.App'x 175, 176, 2008 WL 3271153, *1 (9th Cir. Aug. 6, 2008) (rejecting double jeopardy claim because "the [Parole] Board's decision did not subject [petitioner] to either a second criminal prosecution or to multiple punishments for the commitment offense"); Guzman v. Morris, 644 F.2d 1295, 1299 (9th Cir.1981) (finding that double ...

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