Nichols v. Arnold

          ORDER (1) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND ACTION; AND (2) DENYING A CERTIFICATE OF APPEALABILITY

          DALE S. FISCHER UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         On 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.

         Petitioner 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.

         As it 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”).

         II. PROCEDURAL HISTORY^[1]

         On July 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).^[2] 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. Id.

         On 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.^[3]

         III. DISCUSSION

         A. Summary Dismissal of the Petition Is Appropriate

          A 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, 2013) (same).

         B. Federal Habeas Relief Is Not Available for Petitioner's Claims

         “There 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).^[4]

         “In 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 hearing.

         The 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. § ...