(HC) Calderon v. Board of Parole Hearings of CA ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS CALDERON, No. 2:23-cv-2554 CKD P 12 Petitioner, 13 v. ORDER AND 14 BOARD OF PAROLE HEARINGS, FINDINGS AND RECOMMENDATIONS CALIFORNIA, 15 Respondent. 16 17 18 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 20 Examination of the in forma pauperis application reveals that petitioner is unable to afford the 21 costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 22 U.S.C. § 1915(a). 23 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 24 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 25 petitioner is not entitled to relief. The court has conducted that review. 26 In his first claim, petitioner asserts that his being denied parole has violated his Fourteenth 27 Amendment right to due process. Petitioner does have a liberty interest in parole protected by the 28 Due Process Clause. Swarthout v. Cooke, 131 S. Ct. 859, 861–62, 178 L.Ed.2d 732 (2011). 1 However, the procedural protections which must be afforded with respect the liberty interest 2 implicated are minimal; the “Constitution does not require more” than “an opportunity to be 3 heard” at a parole hearing and that the potential parolee be “provided a statement of the reasons 4 why parole was denied.” Id. at 862. Since petitioner does not allege he was denied an 5 opportunity to be heard at parole proceedings nor that he was not informed why he was denied 6 parole, he cannot prevail on his first claim. 7 Petitioner also claims his being denied parole violates California law. With respect to this 8 aspect of his claim, petitioner is not entitled to habeas relief as the court can only entertain a 9 petition for a writ of habeas corpus if a violation of federal and not state law is alleged. 28 U.S.C. 10 § 2254. 11 In claim two, petitioner appears to assert that he has been denied timely parole hearings. 12 Arguably the court could order that a parole hearing be held if petitioner showed he is entitled to 13 one at present time. He has not made that showing nor attempted to. 14 In claim 3, petitioner complains about representation received at parole proceedings. The 15 Ninth Circuit has held that California prisoners do not have a right to counsel at parole 16 proceedings arising under the Due Process Clause of the Fourteenth Amendment, Dorado v. Kerr, 17 454 F.2d 892, 897 (9th Cir. 1972), and the Sixth Amendment right to effective assistance of 18 counsel is specific to “criminal prosecutions.” Since petitioner has no federal right to counsel at 19 any parole proceeding, he is not entitled to relief as to ground 3. 20 The heading for claim 4 reads as follows: 21 Petitioner has been denied all the federal protected rights on reasonable plea offer jury trial; direct appeal, post-conviction legal 22 actions; and now over past 20 years and parole hearings. 23 However, he fails to point to anything specific suggesting any of these rights have been violated. 24 Because petitioner fails to point to any even arguable basis for granting petitioner relief 25 under 28 U.S.C. § 2254, the court will recommend that petitioner’s petition for writ of habeas 26 corpus be summarily dismissed. 27 ///// 28 ///// ] Accordingly, IT IS HERBY ORDERED that: 2 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 2) is granted; and 3 2. The Clerk of the Court assign a district court judge to this case. 4 IT IS HEREBY RECOMMENDED that petitioner’s petition for a writ of habeas corpus 5 || be summarily dismissed. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, petitioner may file written 9 || objections with the court. Such a document should be captioned “Objections to Magistrate 10 || Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 11 | certificate of appealability should issue in the event he files an appeal of the judgment in this 12 || case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 13 || deny a certificate of appealability when it enters a final order adverse to the applicant). Where, as 14 || here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should 15 || issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the 16 || district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 17 || debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 18 | v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 19 | (2000)). Petitioner is advised that failure to file objections within the specified time may waive 20 | the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: May 23, 2024 / □□ I / dle ae 22 CAROLYNK. DELANEY 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 | | cald2554.sd 28