United States District Court, C.D. California
ORDER (1) DISMISSING PETITION FOR WRIT OF HABEAS
CORPUS AND ACTION; AND (2) DENYING A CERTIFICATE OF
S. FISCHER UNITED STATES DISTRICT JUDGE
December 28, 2017, petitioner Joseph Nichols
(“petitioner”), a California state prisoner
proceeding pro se, filed a Petition for Writ of
Habeas Corpus by a Person in State Custody Pursuant to 28
U.S.C. § 2254 (“Petition”), with attachments
(“Petition Attachments” or “Petition
Att.”) and exhibits (“Petition Exhibits” or
“Petition Ex.”). The exhibits include a
transcript of a January 14, 2016 hearing before the
California Board of Parole Hearings (“Board”).
See Petition Ex. A.
challenges the Board's decision denying him parole,
claiming that such decision violated his due process rights.
As will be discussed in greater detail below, petitioner
essentially alleges: (1) the Board relied on erroneous
information in a probation officer's report to find him
not suitable for parole; (2) the Board relied on a
comprehensive risk assessment report prepared by a
psychologist who was biased and made sexual advances toward
petitioner during his evaluation and, when rebuffed, prepared
a negative assessment; (3) both the Board and the
psychologist were wrong about petitioner's alleged lack
of insight or remorse because petitioner has always
maintained his innocence; (4) the Board failed to comment on
certain information in petitioner's typewritten rebuttal
to the psychologist's assessment and on petitioner's
laudatory “chronos” in the file; (5) the Board
denied petitioner a postponement of the hearing so petitioner
could gather documentation to support his suitability for
parole; (6) petitioner's counsel for the hearing was
ineffective in failing to advise the Board that petitioner
had requested other counsel, and for failing to meet with
petitioner before the hearing to discuss strategy; (7) the
Board failed to determine an “adjusted base term”
as ordered by In re Butler, Cal.Ct.App. Case No.
A139411; (8) the Board relied on unreliable and/or dated
disciplinary reports; (9) the Board relied on
“confidential” information in denying parole
without giving petitioner related discovery to prepare for
the hearing; and (10) petitioner otherwise is qualified for
“elderly parole” because he is 60 years old.
See Petition Att. at 1-34.
plainly appears from the face of the Petition, the Petition
Attachments, and the Petition Exhibits that petitioner is not
entitled to federal habeas relief as requested, the Petition
is denied and this action is dismissed pursuant to Rule 4 of
the Rules Governing Section 2254 Cases in the United States
District Courts (“Habeas Rule 4”).
8, 1993, a Los Angeles County Superior Court jury convicted
petitioner of kidnapping for robbery, second degree robbery,
dissuading a witness by force or threat, and evading a police
officer. See Petition at 2. The jury found true
firearm use allegations. See People v. Nichols, 29
Cal.App.4th 1651, 1654 (1994) (detailing history);
Nichols v. Asuncion, C.D. Cal. Case No. CV 16-5405
DSF(JC), Docket No. 10 at 2 (Order Dismissing Petition for
Writ of Habeas Corpus and Action Without
Prejudice). Petitioner admitted having suffered prior
felony convictions. People v. Nichols, 29
Cal.App.4th at 1654. The state court sentenced petitioner to
life plus 18 years and eight months in state prison.
January 14, 2016, the Board held a parole hearing and denied
petitioner parole. See Petition Ex. A. As noted
above, on December 28, 2017, petitioner filed the instant
Petition challenging the 2016 parole denial. Petitioner has
not included with the Petition specific information for any
state court filings related to the Board's 2016 parole
denial. See Petition at 3-5.
Summary Dismissal of the Petition Is Appropriate
district court may dismiss a habeas petition summarily
“[i]f it plainly appears from the face of the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court.” Habeas Rule 4;
Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir.
1998). Here, dismissal of the Petition and this action
pursuant to Habeas Rule 4 is appropriate. See, e.g.,
Ezell v. McDowell, 2017 WL 6868706, at *3-*4 (C.D. Cal.
Nov. 7, 2017) (summarily dismissing habeas claims challenging
parole suitability determination where, as here, petitioner
received all the process to which he was entitled,
i.e., he had an opportunity to be heard and the
Board stated its reasons for denying parole; citing
Swarthout v. Cooke, 562 U.S. 216, 222 (2011)),
report and recommendation adopted, 2017 WL 6818657
(C.D. Cal. Dec. 29, 2017); Crane v. Beard, 2017 WL
1234096, at *5 (C.D. Cal. Apr. 3, 2017) (same),
certificate of appealability denied, 2017 WL 6498004
(9th Cir. 2017); Bird v. Board, 2016 WL 3456838, at
*2 (D. Mont. May 16, 2016) (summarily dismissing habeas claim
challenging parole suitability determination as foreclosed by
Swarthout where petitioner received minimal
procedural protection required; such was the “beginning
and the end of federal habeas” analysis (quoting
Swarthout, 562 U.S. at 220)), report and
recommendation adopted, 2016 WL 3509452 (D. Mont. June
21, 2016); Aranda v. Seibel, 2016 WL 749061, at
*3-*4 (C.D. Cal. Feb. 24, 2016) (same); Caldwell v.
Valenzuela, 2013 WL 941970, at *2 (C.D. Cal. Mar. 11,
Federal Habeas Relief Is Not Available for Petitioner's
is no constitutional or inherent right of a convicted person
to be conditionally released before the expiration of a valid
sentence.” Greenholtz v. Inmates of Nebraska Penal
and Correctional Complex, 442 U.S. 1, 7 (1979)
(“Greenholtz”). In some instances,
however, state statutes may create liberty interests in
parole release entitled to protection under the federal Due
Process Clause. See Board of Pardons v. Allen, 482
U.S. 369, 371 (1987); Greenholtz, 442 U.S. at 12.
The Ninth Circuit has held that California's statutory
provisions governing parole create such a liberty interest.
See Roberts v. Hartley, 640 F.3d 1042, 1045 (9th
Cir. 2011); Hayward v. Marshall, 603 F.3d 546, 555
(9th Cir. 2010) (en banc), overruled on other grounds by
Swarthout v. Cooke, 562 U.S. 216 (2011).
the context of parole, . . . the procedures required are
minimal.” Swarthout v. Cooke, 562 U.S. at 220.
Due Process requires that the State furnish a parole
applicant with an opportunity to be heard and a statement of
reasons for a denial of parole. Greenholtz, 442 U.S.
at 16; see also Swarthout v. Cooke, 562 U.S. at 220.
“The Constitution does not require more.”
Greenholtz, 442 U.S. at 16; accord Swarthout v.
Cooke, 562 U.S. at 220 (citation omitted); see also
Roberts v. Hartley, 640 F.3d at 1046 (“there is no
substantive due process right created by the California
parole scheme”). In the parole context, then,
“[d]ue process is satisfied as long as the state
provides an inmate seeking parole with ‘an opportunity
to be heard and . . . a statement of the reasons why parole
was denied.'” Roberts v. Hartley, 640 F.3d
at 1046 (quoting Swarthout v. Cooke, 562 U.S. at
220). Petitioner does not contend, and the record does not
show, that petitioner was denied these required procedural
safeguards. Petitioner had a lengthy hearing during which
petitioner and his counsel had ample opportunity to be heard,
and the Board issued a written statement of its reasons for
denying petitioner parole. See Petition Ex. A
(hearing transcript and decision). Contrary to
petitioner's general argument, petitioner plainly
received all the process that was due during his 2016 parole
California Supreme Court has held, as a matter of state law,
that “some evidence” must exist to support a
parole denial. See In re Lawrence, 44 Cal.4th 1181,
1212 (2008). In Swarthout v. Cooke, however, the
United States Supreme Court rejected the contention that the
federal Due Process Clause contains a guarantee of
evidentiary sufficiency with respect to a parole
determination. Swarthout v. Cooke, 562 U.S. at
220-22 (“No opinion of ours supports converting
California's ‘some evidence' rule into a
substantive federal requirement.”); see also Miller
v. Oregon Bd. of Parole and Post-Prison Supervision, 642
F.3d 711, 717 (9th Cir. 2011) (issue is not whether
Board's parole denial was “substantively
reasonable, ” or whether the Board correctly applied
state parole standards, but simply was “whether the
state provided Miller with the minimum procedural due process
outlined in [Swarthout v.] Cooke”).
Accordingly, Swarthout v. Cooke bars any challenge
to the sufficiency of the evidence to support the Board's
decision. See id. at 222 (“The Ninth
Circuit's questionable finding that there was no
evidence in the record supporting parole denial is irrelevant
unless there is a federal right at stake. . . . [T]he
responsibility for assuring that the constitutionally
adequate procedures governing California's parole system
are properly applied rests with California Courts, and is no
part of the Ninth Circuit's business.”) (emphasis
original; internal citation omitted); Pearson v.
Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011)
(“[Swarthout v. Cooke] makes clear that we
cannot consider whether ‘some evidence' of
dangerousness supported a denial of parole on a petition
filed under 28 U.S.C. § ...