United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Application to Proceed In Forma Pauperis
has not filed an in forma pauperis affidavit or paid the
required filing fee. See 28 U.S.C. §§
1914(a); 1915(a). However, the court will not assess a filing
fee at this time. Instead, the undersigned will recommend
summary dismissal of the petition.
challenges the August 4, 2017 decision by the Board of Parole
Hearings (Board), denying him early parole under Proposition
57. ECF No. 1 at 3-9, 12-13. He asserts that his due process
rights were violated when the Board denied him parole based
on false or inaccurate information, looked at old violations
and offenses, and did not properly consider the mitigating
factors he presented. Id. at 3-9.
exhaustion of state court remedies is a prerequisite to the
granting of a petition for writ of habeas corpus unless
“there is an absence of available State corrective
process” or circumstances make the process ineffective
to protect a petitioner's rights. 28 U.S.C. §
2254(b)(1). If exhaustion is to be waived, it must be waived
explicitly by respondent's counsel. 28 U.S.C. §
2254(b)(3). A waiver of exhaustion, thus, may not be
implied or inferred. A petitioner satisfies the exhaustion
requirement by providing the highest state court with a full
and fair opportunity to consider all claims before presenting
them to the federal court. Picard v. Connor, 404
U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d
1083, 1086 (9th Cir. 1985).
appears the petition is wholly unexhausted. The petition
affirmatively states that petitioner has exhausted his
administrative remedies with the Board and that his next step
is the superior court. ECF No. 1 at 10. A search of the
California Supreme Court's website also shows that
petitioner has not filed a petition in that court since 2014,
indicating that he has not presented the instant claims to
that court. Petitioner will not be given the opportunity to
move for a stay and abeyance to allow him to exhaust his
state remedies because, as discussed below, the petition also
fails to state a cognizable claim.
of the Habeas Rules requires the court to summarily dismiss a
habeas petition “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” As set forth
below, the petition fails to state a cognizable claim for
relief and should be dismissed.
United States Supreme Court in 2011 overruled a line of Ninth
Circuit precedent that had supported habeas review of parole
denials in California cases. Swarthout v. Cooke, 562
U.S. 216, 219 (2011). The Supreme Court held that federal
habeas jurisdiction does not extend to review of the
evidentiary basis for state parole decisions. Id.
Because habeas relief is not available for errors of state
law, and because the Due Process Clause does not require
correct application of California's “some
evidence” standard for denial of parole, federal courts
may not intervene in parole decisions as long as minimum
procedural protections are provided. Id. at 219-20.
The protection afforded by the federal Due Process Clause to
California parole decisions consists solely of the
“minimum” procedural requirements set forth in
Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1 (1979). Cooke, 562 U.S. at
220. Specifically, that petitioner was provided with
“an opportunity to be heard and . . . a statement of
the reasons why parole was denied.” Id.
(citing Greenholtz, 442 U.S. at 16).
does not allege that he was denied an opportunity to be heard
or a statement of the reasons why parole was denied,
the Ninth Circuit has acknowledged that after Cooke,
substantive challenges to parole decisions are not cognizable
in habeas. Roberts v. Hartley, 640 F.3d 1042, 1046
(9th Cir. 2011). Therefore, petitioner's challenge to the
denial of parole is not cognizable.
accordance with the above, IT IS HEREBY ORDERED that the
Clerk of the Court randomly assign a United ...