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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


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