CIVIL MINUTES - GENERAL
VALERIE BAKER FAIRBANK, District Judge.
PROCEEDINGS (IN CHAMBERS): ORDER ADOPTING THE REPORT AND RECOMMENDATION WITH A CLARIFICATION, and DENYING THE HABEAS CORPUS PETITION
The Court will adopt the well-reasoned Report and Recommendation and deny the section 2254 habeas corpus petition, with a clarification. The clarification implements an additional basis for dismissal, namely, the Supreme Court has never held that California has created a liberty interest in parole.
The Magistrate Judge reasonably concludes that to the extent that petitioner's subclaims directly or indirectly challenge the substance of the parole board's decision or its compliance with state law, the claims are not cognizable on federal collateral review. As the Magistrate notes, the Supreme Court has held that when state law creates a liberty interest in parole, the existence of such an interest does not give rise to any federal right to be paroled. See R&R at 11 (citing Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859 (2011) (per curiam) (" Cooke ") and Roberts v. Hartley, 640 F.3d 1042, 1045-46 (9th Cir. 2011) (explaining Cooke )). "Rather, the federal due process protection for such a state-created liberty interest is limited to whether the minimum procedures adequate for due-process protection of that interest' have been met, namely, whether the prisoner as given the opportunity to be heard and received a statement of the reasons why parole was denied." R&R at 11 (quoting Cooke, 131 S.Ct. at 862-63, and citing Miller, 642 F.3d at 716). The Supreme Court forcefully held that "it is no federal concern... whether California's some evidence' rule of judicial review (a procedure beyond that which the Constitution demands) was correctly applied." R&R at 12 (quoting Cooke, 131 S.Ct. at 863).
Nor is there any substantive due process right, under Supreme Court precedent, created by California's parole system. See R&R at 11 (citing Styre, 645 F.3d at 1108); see, e.g., Parejo v. Frakes, 2013 WL 2403257, *4 (W.D. Wash. May 31, 2013) ( Cooke foreclosed § 2254 petitioner's claim that California state parole "Board violated his substantive due process rights when it relied on erroneous information, reinterpreted facts, and conspired to rewrite the facts so that subsequent panels would find that he is not eligible for parole").
Rather, a purely procedural due process assessment is "the beginning and the end of" federal habeas inquiry into whether a state's denial of parole violated the prisoner's federal constitutional right to due process. See R&R at 11 (citations omitted); see, e.g., Branham v. Davison, 433 F.Appx. 491, 492 (9th Cir. 2011) (reversing grant of habeas relief) (applying Cooke to hold that inquiry ended as soon as evidence showed that petitioner had received the minimal procedural due process required by U.S. Constitution, i.e. notice and access to records in advance, an opportunity to be heard, and a statement of reasons for denial of parole). Significantly, Cooke rejected Circuit decisions which had held that compliance with California's "some evidence" standard was a "substantive federal requirement" under the federal Due Process Clause, R&R at 12 (citation omitted).
The Magistrate Judge rightly concludes that claims 1-8, 9(a), and 10 are barred by Cooke because they essentially contend that California's "some evidence" standard for judicial review of parole decisions was not met by the evidence presented at his hearing, and violations of state law cannot supply the basis for federal habeas relief. See R&R at 12-13 (citing Cooke, 131 S.Ct. at 862-63); see also Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475 (1991) (citing Lewis, 497 U.S. at 783); see, e.g., Loftis v. Almager, 704 F.3d 645, 648 (9th Cir. 2012) ("Loftis cannot obtain federal habeas relief because the state trial court's failure to find a factual basis for his no-contest plea - unaccompanied by protestations of innocence - does not present a constitutional issue cognizable under 28 U.S.C. § 2254.") (cites omitted), pet. cert. filed (U.S. May 17, 2013) (No. 12-10364); Griffin v. Harrington, ___ F.Supp.2d ___, 2012 WL 5464609, *4 (C.D. Cal. Nov. 7, 2012) (Fairbank, J.) (petitioner's claim that the admission of unsworn testimony at his trial violated California Evidence Code was premised on a determination of state law and thus was not cognizable on federal habeas review).
The Magistrate next rightly concludes that claims 9(b) and 12-15 are arguably also foreclosed by Cooke to the extent they contend that the parole board's decision did not comply with California's "some evidence" standard, R&R at 13, and alternately, that said claims patently lack merit or evidentiary support, R&R at 13-20.
However, the petition is subject to dismissal on another ground that arises "earlier" in the Cooke analysis than the Report's stated ground for dismissal: the United States Supreme Court has never held that the State of California has created a liberty interest in parole in the first place. Only the Ninth Circuit has so held. This is fatal to petitioner's claims: under AEDPA a federal court collaterally reviewing a state-court decision on federal law measures the decision only for its compliance with the holdings of the United States Supreme Court - not Supreme Court dicta and not the holdings of lower courts. See Cannedy v. Adams, 706 F.3d 1148, 1156-57 (9th Cir. 2013) ("Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision was contrary to' federal law then clearly established in the holdings of [the Supreme Court] ; or that it involved an unreasonable application' of such law....") (quoting Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 785 (2011)) (emphasis added); Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010) ("[C]learly established law" refers to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions" at the time the state court decided the matter); see, e.g., Cass v. Woodford, 432 F.Supp.2d 1061, 1073 (S.D. Cal. 2006) (" Biggs is a Ninth circuit case.... Consequently, Biggs does not provide a basis for this Court to grant federal habeas relief."), aff'd o.g., 234 F.Appx. 625 (9th Cir. 2007). As for the existence of a liberty interest in parole created by California law, the Supreme Court has stated only the following:
As for the Due Process Clause, standard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460... (1989). Here, the Ninth Circuit held that California law creates a liberty interest in parole, see 606 F.3d, at 1213. While we have no need to review that holding here, it is a reasonable application of our cases. See Board of Pardons v. Allen, 482 U.S. 369, 373-381... (1987); Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12... (1979).
Cooke, ___ U.S. at ___, 131 S.Ct. at 861 (emphasis added). Other members of our court have correctly characterized what the Supreme Court held and did not hold in Cooke :
In Cooke, the Court held that California's parole scheme does not create a right to parole under the federal Constitution. 131 S.Ct. at 862. Rather, any liberty interest in parole is only a state interest created by California law. Id. Therefore, 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 are the minimal procedural due process protections set forth in Greenholtz ... 442 U.S. 1 , 16... (1979), that is, an opportunity to be heard and a statement of reasons for the denial. Id.
Williamson v. Hartley, 2011 WL 4434228, *2 (C.D. Cal. July 18, 2011), R&R adopted, 2011 WL 4434210 (C.D. Cal. Sept. 23, 2011) (emphasis added). As the italicized phrase "even if" indicates, the Supreme Court in Cooke expressly left open the question whether California has created a liberty interest in parole.
For AEDPA purposes, it is immaterial that, as the Ninth Circuit put it, "the Supreme Court [in Cooke ] did not disturb our precedent that California law creates a liberty interest in parole.'" Miller v. Oregon Bd. of Parole, 642 F.3d 711, 715 (9th Cir. 2011) (quoting Pearson v. Muntz, 639 F.3d 1185 (9th Cir. 2011) (quoting Cooke, 131 S.Ct. at 861)). Cooke 's statement that it was a "reasonable application" of Supreme Court precedents for the Circuit to hold that California has created a federally constitutionally protectable liberty interest in parole, was dictum. The Supreme ...