(HC) Rouser v. Lozano ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 WILLIAM ROUSER, Case No. 2:21-cv-00777-JDP (HC) 11 Petitioner, ORDER GRANTING PETITIONER’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS 13 JARED LOZANO, ECF No. 2 14 Respondent. ORDER FINDING THAT THE PETITION STATES A COGNIZABLE CLAIM FOR 15 VIOLATION OF PETITIONER’S DUE PROCESS RIGHTS DURING A PAROLE 16 HEARING, BUT NO OTHER VIABLE CLAIMS 17 ECF No. 1 18 19 Petitioner William Rouser, a state prisoner proceeding pro se, challenges an April 2020 20 denial of parole. ECF No. 1 at 5, 23. The petition is before me for preliminary review under 21 Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the 22 habeas proceeding must examine the habeas petition and order a response to the petition unless it 23 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 24 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). I find that 25 petitioner is potentially entitled to relief on his claim that he was denied due process during his 26 parole hearing. I also find, however, that none of his other claims are cognizable. Petitioner must 27 advise whether he wishes to proceed on the claim I have found cognizable or file an amended 28 petition. I will also grant his application to proceed in forma pauperis. ECF No. 2. 1 Petitioner raises four claims. First, he argues that the parole board’s denial of parole was 2 cruel and unusual punishment under the Eighth Amendment. ECF No. 1 at 5. There is no 3 constitutional right to parole, however, and its denial cannot violate the Eighth Amendment. See 4 Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (“There is no right under the Federal Constitution 5 to be conditionally released before the expiration of a valid sentence, and the States are under no 6 duty to offer parole to their prisoners.”). 7 Second, he argues that the attorney who represented him at his parole hearing rendered 8 ineffective assistance. ECF No. 1 at 7. But there is no right to assistance of counsel in parole 9 hearings. See Garner v. Yates, No. 1:08-CV-00196-OWW-GSA HC, 2008 U.S. Dist. LEXIS 10 11112, *6 (E.D. Cal. 2008) (“Likewise, the Constitution does not require the assistance of counsel 11 at a parole board hearing.”). 12 Third, petitioner argues that the parole board primarily based its denial on disciplinary 13 violations that it knew to be unreliable. This states a possible due process claim. The decision to 14 deny parole must be supported by “some evidence” that has indicia of reliability. Superintendent, 15 Mass. Correc. Inst. v. Hill, 472 U.S. 445, 455 (1985). 16 Fourth, petitioner argues that the parole board violated his due process rights by admitting 17 into evidence a psychiatric evaluation with which he disagreed. ECF No. 1 at 15. There is no 18 constraint on the type of evidence the parole board may consider, so long as that evidence is 19 reliable. Hill, 472 U.S. at 455 (holding that the only due process requirements in a parole hearing 20 are advance notice of the hearing, an opportunity for the inmate to be heard, an explanation for 21 any denial of parole, and that some reliable evidence support the decision to deny parole). The 22 petition argues that the psychiatric evaluation was wrong, but petitioner’s disagreement not render 23 the evaluation automatically unreliable. To find otherwise might prohibit the use of any adverse 24 psychiatric evidence in parole hearings. Additionally, I cannot tell to what extent the parole 25 board relied on the evaluation, because their reasoning is not included with the petition. 26 It is ORDERED that: 27 1. Petitioner’s application to proceed in forma pauperis, ECF No. 2, is granted. 28 1 2. Petitioner may either proceed with the claim I have found cognizable or file an 2 | amended petition within sixty days. If he chooses the former option, he should submit a written 3 | filing advising me of that decision within thirty days. 4 3. The Clerk of Court is directed to send petitioner a federal habeas form. 5 6 IT IS SO ORDERED. Dated: _ May 6, 2021 8 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28