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Ocampo v. Gonzalez

United States District Court, Ninth Circuit

December 5, 2013

A. GONZALEZ, Warden, Respondent.


CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Gary A. Feess, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.


Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on October 18, 2013. It plainly appears from the face of the Petition that Petitioner is not entitled to federal habeas relief. Therefore, the Petition should be denied and dismissed with prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.


In 1997-98, Petitioner was convicted of second degree murder and received a sentence of 16 years to life in state prison (Petition at 2). On November 6, 2012, Petitioner appeared before the California Board of Parole Hearings ("the Board") for a parole suitability hearing (Exhibit I to Petition). The Board found Petitioner unsuitable for parole (id.).

Petitioner filed a habeas corpus petition in the Los Angeles Superior Court, which that court denied in a reasoned decision (Exhibit C to Petition). Petitioner then filed habeas corpus petitions in the California Court of Appeal and the California Supreme Court, both of which were denied summarily (Exhibits D, E, F and G to Petition).

The present federal Petition challenges the 2012 denial of parole (Petition at 2). Petitioner argues that "there is no evidence in the record" supporting the Board's refusal to deem Petitioner suitable for parole (Petition at 5; Exhibit A to Petition).


"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex , 442 U.S. 1, 7 (1979) ("Greenholtz"). In some instances, however, state statutes may create liberty interests in parole release entitled to protection under the federal Due Process Clause. See Bd. of Pardons v. Allen , 482 U.S. 369, 371 (1987); Greenholtz , 442 U.S. at 12. The Ninth Circuit has held that California's statutory provisions governing parole create such a liberty interest. See Hayward v. Marshall , 603 F.3d 546, 555 (9th Cir. 2010) (en banc), disapproved on other grounds, Swarthout v. Cooke , 131 S.Ct. 859 (2011).[1]

"In the context of parole, ... the procedures required are minimal." Swarthout v. Cooke , 131 S.Ct. at 862. Due process requires that the State furnish a parole applicant with an opportunity to be heard and a statement of reasons for a denial of parole. Greenholtz , 442 U.S. at 16. "The Constitution does not require more." Id .; accord Swarthout v. Cooke , 131 S.Ct. at 862 (citation omitted); Styre v. Adams , 645 F.3d 1106, 1108 (9th Cir. 2011); see also Roberts v. Hartley , 640 F.3d 1042, 1046 (9th Cir. 2011) ("there is no substantive due process right created by the California's parole scheme"). Petitioner does not contend, and the record does not show, that Petitioner was denied these required procedural safeguards.

The California Supreme Court has held, as a matter of state law, that "some evidence" must exist to support a parole denial. See In re Lawrence , 44 Cal.4th 1181, 1212, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008). In Swarthout v. Cooke , however, the United States Supreme Court rejected the contention that the federal Due Process Clause contains a guarantee of evidentiary sufficiency with respect to a parole determination. Swarthout v. Cooke , 131 S.Ct. at 862 ("No opinion of ours supports converting California's some evidence' rule into a substantive federal requirement."). The Swarthout Court expressly disapproved Ninth Circuit cases to the contrary, including Hayward v. Marshall , 603 F.3d at 559-61. See Swarthout v. Cooke , 131 S.Ct. at 862-63. Petitioner's claim that the Board's decision is not supported by sufficient evidence fails to demonstrate that Petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. ยง 2254(a); Frantz v. Hazey , 533 F.3d 724, 736-37 (9th Cir. 2008); see also Swarthout v. Cooke , 131 S.Ct. at 863 ("finding that there was no evidence in the record supporting parole denial is irrelevant unless there is a federal right at stake") (emphasis original). Accordingly, Petitioner is not entitled to federal habeas relief. See id.


For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.

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