(HC) Page v. Fisher ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ALAN PAGE, Case No. 1:19-cv-01463-AWI-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS PETITION 14 WARDEN RAYTHEL FISHER, et al., OBJECTIONS DUE IN THIRTY DAYS 15 Respondents. ECF No. 7 16 17 Petitioner Jason Alan Page, a state prisoner without counsel, petitioned for a writ of 18 habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Before us is respondents’ motion to dismiss 19 the petition for failure to state a cognizable habeas claim. ECF No. 7. For the reasons stated 20 below, we recommend that the court grant petitioner’s motion to dismiss. 21 Background 22 In 1995, petitioner was sentenced to twenty-five years to life in prison for murder, with a 23 sentence enhancement of two years for the use of a firearm in the commission of a felony. ECF 24 No. 1 at 5.1 Petitioner seeks relief from a 2018 Board of Parole Hearings (“BPH”) denial of 25 1 We have reviewed the California Department of Corrections and Rehabilitation’s inmate locator 26 listing for the petitioner and take judicial notice of it per Rule 201 of the Federal Rules of 27 Evidence. See California Department of Corrections and Rehabilitation Inmate Locator, https://inmatelocator.cdcr.ca.gov/ (search “Search for Inmate” for “Jason Page”). Petitioner 28 remains incarcerated, was again denied parole on January 8, 2020, and will have his next parole 1 parole. See generally ECF No. 1. Specifically, petitioner seeks a review of the substantive 2 findings of BPH, arguing that it: (1) failed to consider relevant mitigating factors in determining 3 his suitability for parole, (2) relied on mischaracterizations of the evidence and conjecture, and 4 (3) failed to support the parole denial with evidence that petitioner is dangerous. See id. at 2. In 5 their motion to dismiss, respondents argue that the petition should be dismissed because claims 6 seeking substantive review of state parole hearing decisions are not cognizable on federal habeas 7 review. See ECF No. 7 at 3. 8 Discussion 9 No habeas rule explicitly applies to motions to dismiss and there is some doubt as to what 10 legal framework applies to such motions. See Hillery v. Pulley, 533 F. Supp. 1189, 1194 (E.D. 11 Cal. 1982) (“Motion practice in habeas corpus is not specifically provided for in the [Rules 12 Governing Section 2254 Cases] but must be inferred from their structure and the Advisory 13 Committee Notes.”). Courts in this district have often analyzed motions to dismiss in the habeas 14 context under Rule 4 of the Rules Governing Section 2254 Cases, and we take that approach here. 15 See, e.g., Ram v. Sacramento Cty., No. 2:15-cv-2074-WBS-DB, 2017 U.S. Dist. Lexis 85123 at 16 *4 (E.D. Cal. June 2, 2017). Rule 4 establishes what is commonly known as a “screening” 17 procedure for habeas petitions. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); 18 Browder v. Dir., Dep’t of Corr. of Illinois, 434 U.S. 257, 269 n.14 (1978); Fed. R. Civ. P. 19 81(a)(4)(A). Under Rule 4, we evaluate whether it “plainly appears” that the petitioner is not 20 entitled to relief—and if so we dismiss the petition. 21 Here, petitioner argues that BPH, in denying him parole, wrongfully relied on certain 22 evidence and failed to consider fully some potentially-relevant evidence. ECF No. 1 at 2. 23 Petitioner does not claim that the procedures used during the hearing were inadequate, but rather 24 that the substantive findings of BPH were erroneous considering California’s parole hearing 25 evidentiary standard.2 Federal habeas relief is only available for violations of the constitution, 26 hearing in January 2023. 27 2 Under California law, the standard of review governing determinations of suitability for parole is properly characterized as whether “some evidence” supports the conclusion that the inmate is 28 unsuitable for parole because he is currently dangerous. See Cal. Pen. Code § 3041(b) (West 1 federal law or treaties. See 28 U.S.C. § 2254(a). “There is no right under the Federal 2 Constitution to be conditionally released before the expiration of a valid sentence, and the States 3 are under no duty to offer parole to their prisoners.” See Swarthout v. Cooke, 562 U.S. 216, 220 4 (2011). To the extent petitioner claims only that BPH’s decision was a violation of state law, we 5 cannot grant him relief; federal habeas relief is not available for alleged violations of state law. 6 See Estelle v. McGuire, 502 U.S. 62, 67 (1991). It is beyond the purview of this court to convert 7 California’s “some evidence” rule into a federal requirement. See Swarthout, 562 U.S. at 220-22 8 (Federal review of a state parole hearing is limited to the “process [petitioner] received, not 9 whether the state court decided the case correctly.”). Therefore, we can neither review the 10 sufficiency of evidence presented nor the hearing officer’s substantive findings in light of that 11 evidence. Because petitioner’s claim is not cognizable under federal habeas review, it plainly 12 appears that petitioner is not entitled to relief. Therefore, we recommend that respondents’ 13 motion to dismiss be granted.3 14 Certificate of Appealability 15 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 16 court’s dismissal of a petition; he may appeal only in limited circumstances. See 28 U.S.C. 17 § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 18 Cases requires a district court to issue or deny a certificate of appealability when entering a final 19 order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 20 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner 21 makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 22 2018). 23 3 Even if petitioner had claimed that the procedures afforded him during the BPH hearing were inadequate, he still would be unable to obtain habeas relief. In the context of state parole 24 hearings, federal habeas review is limited to ensuring state prisoners are afforded “minimal” due process—that is, an opportunity to be heard and statement of the reasons for denial. See 25 Swarthout, 562 U.S. at 220 (citing Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979)). Here, petitioner was present with counsel for all proceedings, 26 was permitted to speak on his behalf, and was given detailed reasons for his denial of parole. See 27 ECF No. 1 at 196-246; ECF No. 1-1 at 1-67. The constitution “does not require more.” Swarthout, 562 U.S. at 220 (citing Greenholtz, 422 U.S. at 16). 28 1 | This standard requires the petitioner to show that “jurists of reason could disagree with the district 2 | court’s resolution of his constitutional claims or that jurists could conclude the issues presented 3 | are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord 4 | Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial 5 | showing of the denial of a constitutional right. Thus, we decline to issue a certificate of 6 | appealability. 7 | Findings and Recommendations 8 For the foregoing reasons, we recommend that the court grant defendant’s motion to 9 | dismiss, ECF No. 7, dismiss the case, and decline to issue a certificate of appealability. These 10 | findings and recommendations are submitted to the U.S. district judge presiding over the case 11 under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within thirty days of the service of the 12 | findings and recommendations, the parties may file written objections to the findings and 13 | recommendations with the court and serve a copy on all parties. That document must be 14 || captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 15 | district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 16 7 IT IS SO ORDERED. 18 ( Caan Dated: _ March 30, 2020 19 UNI STATES MAGISTRATE JUDGE 20 21 | No. 206. 22 23 24 |. 25 26 27 28