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Nguon v. Tim

United States District Court, E.D. California

March 13, 2014

HUNG DUONG NGUON, Petitioner,
v.
TIM
v.
VIRGA, Respondent.

FINDINGS AND RECOMMENDATIONS

CRAIG M. KELLISON, Magistrate Judge.

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Pending before the court is respondent's motion to dismiss (Doc. 16).

I. BACKGROUND

Petitioner is serving a sentence of life plus three years following a 1997 conviction for kidnaping and robbery with use of a firearm. He challenges a 2010 determination by the Board of Parole Hearings ("Board") finding him unsuitable for parole and deferring any further parole hearings for seven years pursuant to Proposition 9, commonly known as "Marsy's Law." In his petition, petitioner raises 44 claims alleging: (1) the Board's denial of parole violated his due process rights;[1] (2) he received ineffective assistance of counsel at the parole hearing; (3) the seven-year deferral under Marsy's Law violates the Ex Post Facto Clause; and (4) his term is disproportionate to the crime, in violation of the Eighth Amendment.

II. DISCUSSION

In his motion to dismiss, respondent argues that none of petitioner's claims is cognizable.

A. Due Process Claims

The court agrees with respondent that petitioner's due process claims should be dismissed because they are not cognizable. Reversing the Ninth Circuit's decision in Hayward v. Marshall , 603 F.3d 546 (9th Cir. 2010) (en banc), the United States Supreme Court observed:

Whatever liberty interest exists [in parole] is, of course, a state interest. There is no right under the Federal Constitution to be conditionally released [on parole] before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. Id. at 7. 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....

Swarthout v. Cooke , 562 U.S. ___, 131 S.Ct. 859, 862 (2011) (per curiam) (citing Greenholtz v. Inmates of Neb. Penal and Correctional Complex , 442 U.S. 1, 7 (1979)) (emphasis in original).

The Court held:

... In the context of parole, we have held that the procedures required are minimal. 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. 442 U.S. at 16. "The Constitution, " we held, "does not require more." Ibid. Cooke and Clay 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. (citations omitted).
That should have been the beginning and the end of the federal habeas courts' inquiry into whether Cook and ...

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