United States District Court, E.D. California
GONZALO R. GONZALES, Petitioner
JOE LIZARRAGA, Respondent.
FINDINGS AND RECOMMENDATIONS
Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges the 2014 decision by the California
Board of Parole Hearings (BPH) finding him unsuitable for
of the federal habeas petition and attached exhibits
demonstrates that petitioner is not entitled to relief on the
grounds alleged, thus requiring dismissal of the petition.
See Rule 4, Rules Governing Section 2254 Cases in
the United States District Courts ("[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition....").
Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859
(2011), the Supreme Court held that, even if a California
prisoner has a state-created liberty interest in parole, the
only federal due process to which a California federal habeas
petitioner challenging the denial of parole is entitled is
the minimal procedural due process protections set forth in
Greenholtz v. Inmates of Nebraska Penal and
Corrections Complex, 442 U.S. 1, 16 (1979) (i.e., an
opportunity to be heard, and a statement of reasons for the
denial). See Swarthout, 562 U.S. at 220. Under the
Supreme Court's decision in Swarthout, "it
is no federal concern...whether California's 'some
evidence' rule of judicial review (a procedure beyond
what the Constitution demands) was correctly applied."
See id. at 220-21.
Styre v. Adams, 645 F.3d 1106 (9th Cir. 2011), the
Ninth Circuit found that the Supreme Court's decision in
Swarthout applies equally to cases in which the
Governor, rather than the BPH, found the inmate unsuitable
for parole. The Styre court also noted that the
federal Due Process Clause "does not require that the
Governor hold a second suitability hearing before reversing a
parole decision." 645 F.3d at 1108. Thus, it appears
there is no federal due process requirement for a "some
evidence" review, whether parole eligibility was denied
at the BPH level or by the Governor.
claims that the reasons given in the April 30, 2014 parole
denial were "arbitrary and capricious" because he
has been a model inmate and has successfully rehabilitated.
(ECF No. 1 at 1.) Petitioner alleges that the denial must
comply with Cal. Penal Code § 3041, and he requests that
the court order an evidentiary hearing and require the BPH to
show cause for its denial. Petitioner claims that parole
hearings are a pretense and a farce, and the BPH plans to
keep him in prison forever because he had claimed imperfect
self-defense for second degree murder. (ECF No. 1 at 2.)
Petitioner also alleges that the parole hearing transcript
from April 30, 2014 contains eighty
"indiscernables" or inaudibles in the 125 page
transcript, rendering it insufficient for the court's
review. (ECF No. 1 at 7.)
claims are not cognizable. Under the Supreme Court's
decision in Swarthout, this court may not review
whether California's "some evidence" standard
was correctly applied in petitioner's case.
Swarthout, 131 S.Ct. at 862-63. Petitioner claims
that BPH decision was arbitrary and capricious; however, this
claim is also contradicted by the record. Petitioner is only
entitled to an opportunity to be heard and to be provided a
statement of the reasons for the parole denial. Id.
at 862. The transcript from the hearing indicates that
petitioner was represented by counsel and both counsel and
petitioner were present and had an opportunity to present
their arguments and were then informed on the record why
parole was denied. (Ex. C, ECF No. 1 at 123-248.) The Due
Process Clause requires no more.
HEREBY RECOMMENDED that this petition be dismissed for the
reasons discussed above.
petitioner files objections, he shall also address if a
certificate of appealability should issue. A certificate of
appealability may issue under 28 U.S.C. § 2253
"only if the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). The certificate of appealability must
"indicate which specific issue or issues satisfy"
the requirement. 28 U.S.C. § 2253(c)(3).
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(l). Within fourteen
days after being served with these findings and
recommendations, petitioner may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned "Objections to Magistrate
Judge's Findings and Recommendations." Petitioner is
advised that failure to file objections within the specified
time waives the right to appeal the District Court's
order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
 The number of indiscernible and
inaudible notations did not hinder the undersigned in
reviewing the substance ...