United States District Court, E.D. California
ERIC M. ROBINSON, Petitioner,
RON RACKLEY, Warden, Respondent.
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner paid the filing fee. This action is referred to
the undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 302(c).
Rule 4 of the Rules Governing Section 2254 Cases, this court
is required to conduct a preliminary review of all petitions
for writ of habeas corpus filed by state prisoners. Pursuant
to Rule 4, this court must summarily dismiss a petition if it
“plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court.” Review of the instant petition and
request for judicial notice (which is largely duplicative of
the petition) demonstrates that petitioner is challenging the
September 22, 2015 decision of the California Board of Parole
Hearings (BPH), denying petitioner parole, which was upheld
on further review by the Board on October 1, 2015.
See ECF No. 1 at 18-20; see also id. at
24-6; see also ECF No. 8. Petitioner
apparently sought review of the BPH decisions pursuant to
petitions for writ of habeas corpus filed in the California
Court of Appeal and the California Supreme Court, which were
denied on April 18, 2016 and June 15, 2016, respectively.
Id. at 21-2.
densely-worded petition and request for judicial notice lack
coherence and clarity. Nevertheless, it is apparent that
petitioner is challenging the evidence relied on by the BPH,
which he asserts is the same evidence underlying his 2009
convictions, and includes the allegedly perjured testimony of
petitioner's brother, Craig, the arresting officer and
the district attorney. Petitioner contends that his
conviction and the decision of the BPH should be reversed and
that his imprisonment constitutes cruel and unusual
petitioner is currently pursuing, with the assistance of
counsel, a petition for writ of habeas corpus in the Central
District of California challenging his 2009 convictions.
See Robinson v. Hill, Case No. 2:13-cv-01311 TJH KES
Review of the docket in that case indicates that
respondent's answer to petitioner's Second Amended
Petition is due on April 4, 2017. Id. (ECF No. 190).
Petitioner is precluded from simultaneously challenging his
2009 convictions in a separate habeas petition, see
generally 28 U.S.C. § 2244, and therefore his
current challenges to his convictions are not reviewable in
petitioner challenge in this or any federal court the
evidence upon which the BPH relied in reaching its 2015
decisions that petitioner poses a current risk of danger to
the public;petitioner can challenge only the BPH's
procedures. States “are under no duty to offer parole
to their prisoners, ” but the creation of the option
creates a state liberty interest subject to “fair
procedures” protected by federal due process.
Swarthout v. Cooke, 562 U.S. 216, 220 (2011). The
Supreme Court has emphasized that “[i]n the context of
parole, we have held that the procedures required are
minimal. . . . [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.' Id. at 220 (quoting Greenholtz v.
Inmates of Neb. Penal and Correctional Complex, 442 U.S.
1, 16 (1979)). In Swarthout, the Supreme Court found
no violation of due process where prisoners “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.” Id. (citations omitted). The
Supreme Court declined to elevate to a federal liberty
interest the California requirement that BPH decisions be
supported by “some evidence” of current
dangerousness, emphasizing that “the only federal right
at issue is procedural, [and therefore] the relevant inquiry
is what process [the prisoner] received, not whether the
state court decided the case correctly.” Id.
instant petition is replete with allegations of fraud,
fabrication, perjury and conspiracy (as well as excessive
force, violation of due process, violation of the Fourth
Amendment, the ineffective assistance of “all my
P.D.S., ” (presumably “Public Defenders”),
etc.). However, the gravamen of the petition is a challenge
to the evidence relied on by the BPH in denying petitioner
parole. Under Swarthout, this challenge is not
cognizable on federal habeas review.
this court finds that the instant petition fails to state a
cognizable claim for federal habeas relief for the following
reasons. First, petitioner's challenges to his 2009
convictions are currently being addressed by petitioner's
counsel in the Central District of California in Robinson
v. Hill, Case No. 2:13-cv-01311 TJH KES P, and that
action is the exclusive means for such challenges.
See 28 U.S.C. § 2244. Second, petitioner's
challenges to the evidence underlying his 2015 denial of
parole are not cognizable in federal court.
Swarthout, 562 U.S. 216. Accordingly, this court
recommends dismissal of the instant petition without
prejudice. See Rule 4, Rules Governing Section 2254
IT IS HEREBY RECOMMENDED that:
petition for writ of habeas corpus, ECF No. 1, be denied
without prejudice; and
Clerk of Court be directed to close this case.
findings and recommendations are submitted to the United
States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within twenty-one
days after being served with these findings and
recommendations, petitioner may file written objections with
the court. Such document should be captioned
“Objections to Magistrate Judge's Findings and
Recommendations.” Petitioner is advised that failure to
file objections within the specified time may waive the right
to appeal the District Court's order.