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Simon v. Diaz

United States District Court, C.D. California

February 6, 2015

DOUGLAS DANIEL SIMON, Petitioner,
v.
RALPH DIAZ, Warden, Respondent

Douglas Daniel Simon, Petitioner, Pro se, San Diego, CA.

MEMORANDUM AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

HONORABLE BEVERLY REID O'CONNELL, UNITED STATES DISTRICT JUDGE.

I.

INTRODUCTION

Petitioner is a California state prisoner currently incarcerated at the Richard J. Donovan Correctional Facility. He filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 2, 2013. Petitioner contends that his rights were violated when he was denied parole following a hearing on October 3, 2012. In light of Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (per curiam), the Court finds that the petition must be dismissed because petitioner cannot demonstrate that his federal due process rights were violated or that any state court decision was contrary to or involved an unreasonable application of clearly established Supreme Court law.

II.

BACKGROUND

Petitioner was convicted in 1994 of murder with an enhancement for use of a firearm. Pet. at 2. He was sentenced to twenty-five years to life in prison plus five years. Id.

Following a hearing held on October 3, 2012 before the Board of Parole Hearings, petitioner was denied parole in a decision that became final on January 31, 2013. Pet. at 74. Petitioner challenged that decision in a series of habeas petitions filed in the state courts. See Pet. at 4-5, 87-91.

The Superior Court denied his petition in a decision issued on March 11, 2013, finding that petitioner failed to state a prima facie case for release. Pet. at 87-89. The California Court of Appeal denied his petition without comment. Pet. at 90. The California Supreme Court denied his petition with a citation to People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995). Pet. at 91.

In the instant federal petition, petitioner raises three related grounds for relief: (1) that the psychologist who evaluated him prior to his parole hearing kept " secret" the fact that " she was exempt from Board of Psychology rules and standards of practice"; (2) that in denying him parole the Board of Parole Hearings did not meet the " some evidence" standard; and (3) he was not provided a list of reasons parole was denied. Pet. at 5-6.

On October 9, 2013 this Court issued, and on October 23, 2013 this Court reissued, an Order to Show Cause why the petition should not be denied in light of Swarthout v. Cooke . Petitioner filed a response to the Order to Show Cause (" OSC Response") on November 7, 2013.

III.

DISCUSSION

In Swarthout v. Cooke, the Supreme Court held that, even if a California prisoner has a state-created liberty interest in parole, the only federal due process to which a California prisoner seeking parole is entitled is the minimal procedural due process protections set forth in Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), that is, to be allowed an opportunity to be heard, and to receive a statement of reasons for the denial. Cooke, 131 S.Ct. at 862. The Supreme Court observed that, where the records reflect that the prisoners were allowed to speak at the hearings and to contest the evidence, were afforded access to their records in advance, and were notified as to the reasons why parole was denied, " [t]hat should have been the beginning and the end of the federal habeas courts' inquiry." Id. Under the Supreme Court's decision, " it is no federal concern here whether California's 'some evidence' rule of judicial review (a procedure beyond what the Constitution demands) was correctly applied." Id. at 863.

Based on the Court's review of the petition in this case, it appears that petitioner's primary claim is his claim in ground two that the " some evidence" standard was not met. As just stated, such a claim is not cognizable in this Court. Although petitioner attempts to frame the claim as one for violation of his due process rights ( see Pet. at 82-85), a petitioner may not " transform a state-law issue into a federal one merely by asserting a violation of due process." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Because petitioner's claim fundamentally involves only the application or interpretation of state law, it is not a cognizable claim for federal habeas relief. See 28 U.S.C. § 2254(a); Cooke, 131 S.Ct. at 863 (" [I]t is no federal concern here whether California's 'some evidence' rule of judicial review . . . was correctly applied."); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (" In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Petitioner appears to confuse his parole eligibility date with the date on which his life sentence would expire. See OSC Response at 2. " There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence." Cooke, 131 S.Ct. at 862. Without such a federal right, this Court cannot effect the relief sought.

In ground three petitioner nominally contends he was not provided with a list of reasons parole was denied; however, read in context with the other arguments he makes in support of the petition, it is apparent that petitioner is really contending that those reasons lack support, not that they were not given. See Pet. at 6, 26-39, 86. Moreover, the record submitted by petitioner -- which includes portions of the hearing transcript and other documents -- reflects that petitioner was given a lengthy and detailed list of reasons for the denial of parole. Pet. at 61-68, 71-74. This record, although incomplete, further reflects that petitioner was allowed to speak at the parole consideration hearing and to contest the evidence, and was in fact represented by counsel. See Pet. at 40, 48-49. While petitioner contends that the Board of Parole incorrectly found petitioner not eligible for parole, that is not a federal concern under the Supreme Court's decision in Swarthout v. Cooke .

In ground one, petitioner claims that the psychologist who evaluated him prior to his parole hearing kept " secret" the fact that she was exempt from Board of Psychology rules and standards of practice. Pet. at 5. The letter from the Board of Psychology that petitioner submits clearly states that, under California state law, a psychologist employed by the government is exempt from licensing laws. Pet. at 23. Petitioner does not explain how the Board of Parole's use of a psychologist who was in compliance with state law constituted a violation of his constitutional rights so as to present a claim cognizable on federal habeas review. See 28 U.S.C. § 2254(a) (federal court may entertain habeas petition on behalf of person in state custody " only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States"). Again, petitioner has failed to raise a claim that presents a federal concern under Swarthout v. Cooke .

In sum, the record shows that petitioner received all the procedural protections required by the federal Constitution. Accordingly, even if petitioner's contentions are accepted as true, this Court has no basis to find that petitioner's federal due process rights have been violated, or that the state courts' decisions denying his earlier habeas petitions were contrary to or involved an unreasonable application of clearly established Supreme Court law.

IV.

ORDER

IT IS THEREFORE ORDERED that Judgment be entered summarily denying the petition and dismissing this action with prejudice.

JUDGMENT

Pursuant to the Memorandum and Order Summarily Dismissing Petition for Writ of Habeas Corpus,

IT IS HEREBY ADJUDGED that the Petition is denied and this action is dismissed with prejudice.


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