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Pancho v. Swarthout

United States District Court, Ninth Circuit

October 23, 2013

JOSE LUIS PANCHO, Petitioner,
v.
GARY SWARTHOUT, Warden, et al., Respondents.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Petitioner, a state prisoner proceeding without counsel, has filed an application to proceed in forma pauperis, together with a petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254, challenging a 2010 decision of the California Board of Parole Hearings (Board), denying petitioner parole. Petitioner has consented to the jurisdiction of the undersigned Magistrate Judge for all purposes.[1] Petitioner is serving a life sentence with the possibility of parole, following his 2001 convictions on the crimes of kidnapping for carjacking and kidnapping for robbery.

Petitioner contends that the Board's decision is not supported by "some evidence" that petitioner's release would pose a danger to society, and thus violates petitioner's federal constitutional right to due process. Petitioner also contends that the Board's application of California's "Marsy's Law, " to delay for seven years a subsequent parole hearing, violates the Constitution's Ex Post Facto Clause. Petitioner's related state petition for writ of habeas corpus, filed in the California Supreme Court, was summarily denied on October 31, 2012. (ECF No. 2-8 at 6.)

Review of the federal habeas petition and attached exhibits demonstrates that petitioner is not entitled to relief on the grounds alleged, thus requiring dismissal of the petition. See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts ("[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition....").

II. Due Process

Petitioner contends that the Board's September 15, 2010 decision denying him parole is not supported by "some evidence" that petitioner's release would pose a danger to society, as required by state law, and therefore violates petitioner's federal constitutional right to due process.

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 prisoner alleging a due process violation must demonstrate that he was deprived of a liberty interest protected by the Due Process Clause, then show that the procedures resulting in the deprivation of that interest were constitutionally inadequate. Kentucky Department of Corrections v. Thompson , 490 U.S. 454, 459-60 (1989).

A protected liberty interest may arise from the Due Process Clause 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 Nebraska , 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; see also 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.).

Therefore, California's parole statutes give rise to a liberty interest in parole protected by the federal Due Process Clause. Swarthout v. Cooke , 131 S.Ct. 859 (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, the United States Supreme Court has 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. In other words, the Court specifically rejected the notion that there can be a valid claim under the Fourteenth Amendment for insufficiency of evidence relied upon to make a parole decision. Id. at 863-64. 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. Thus, "the beginning and the end of the federal habeas courts' inquiry" is whether petitioner received "the minimum procedures adequate for due-process protection." Id. at 862.

Petitioner has submitted the transcript of the Board's September 15, 2010 hearing and decision. (See ECF No. 2-2 at 12 through ECF No. 2-7 at 9.) Review of the transcript demonstrates that petitioner had an opportunity to be heard and was given a statement of the reasons why parole was denied. Petitioner was present at the hearing, represented by counsel and assisted by an interpreter; petitioner received the pertinent materials before the hearing and had adequate time to review them; petitioner testified and responded to the Board's questions; petitioner and his counsel each made comprehensive closing statements; and the Board stated on the record the reasons for its decision denying parole.

According to the United States Supreme Court, the federal Due Process Clause requires no more. As the Supreme Court stated in Swarthout: "In Greenholtz, we found that a prisoner subject to a parole statute similar to California's received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. The Constitution, we held, does not require more.'" Swarthout, 131 S.Ct. at 162 (quoting Greenholtz , 442 U.S. at 16).

For these reasons, this court finds that petitioner is not entitled to relief based on his ...


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