(HC) Duran v. Newsom ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DURAN, Case No. 2:23-cv-01910-JDP (HC) 12 Petitioner, ORDER 13 v. 14 GAVIN NEWSOM, 15 Respondent. 16 17 Petitioner, a state prisoner represented by counsel, seeks a writ of habeas corpus under 28 18 U.S.C. § 2254. He argues that no evidence supports the state’s denial of his parole. After 19 reviewing his initial petition, I find that it fails to state a cognizable claim. I will give him leave 20 to amend before recommending the petition be dismissed, however. 21 The petition is before me for preliminary review under Rule 4 of the Rules Governing 22 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 23 the habeas petition and order a response to the petition unless it “plainly appears” that the 24 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 25 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 26 Petitioner argues that no evidence supports the state’s denial of his parole. ECF No. 1 at 27 5-7. In so doing, he cites the Ninth Circuit’s decision in Hayward v. Marshall, 603 F.3d 546 (9th 28 Cir. 2010) (en banc), for the proposition that “some evidence” must support the state’s denial of 1 | parole. ECF No. 1 at 7. That case was overruled by the Supreme Court in Swarthout v. Cook, 2 | 562 U.S. 216 (2011). There, the Supreme Court held that, in the context of parole, the 3 | constitution requires only that the prisoner denied parole be afforded an opportunity to be heard 4 | anda statement of reasons as to why parole was denied. /d. at 220. Petitioner does not appear to 5 | argue that he did not receive the minimum procedure that he was due. 6 I will give petitioner an opportunity to amend and explain why this action should still 7 | proceed. 8 It is ORDERED that within thirty days of this order’s entry, petitioner may file an 9 | amended habeas petition. If he does not, I will recommend this action be dismissed. 10 Wl IT IS SO ORDERED. 12 ( ie — Dated: _ November 30, 2023 Q_—_—. 13 JEREMY D. PETERSON 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28