Peter Bergne v. Ronald Davis ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 PETER M. BERGNE, Case No. 19-cv-08315-JD 7 Petitioner, ORDER OF DISMISSAL v. 8 9 RONALD DAVIS, Respondent. 10 11 Petitioner, a California prisoner, proceeds with pro se petition for a writ of habeas corpus 12 pursuant to 28 U.S.C. § 2254 challenging a 2017 parole denial by the Board of Parole Hearings 13 (“BPH”). The original petition was dismissed with leave to amend and petitioner has filed an 14 amended petition. 15 BACKGROUND 16 In 1990 petitioner was sentenced to an indeterminate term of fifteen years to life in state 17 prison with the possibility of parole. Docket No. 1 at 2. Parole has been denied on several 18 occasions, the most recent in 2017. Id. at 21. 19 DISCUSSION 20 STANDARD OF REVIEW 21 This court may consider a petition for writ of habeas corpus “in behalf of a person in 22 custody pursuant to the judgment of a State court only on the ground that he is in custody in 23 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 24 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 25 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 26 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 27 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 1 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 2 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 3 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 4 688, 689 (1st Cir. 1970)). 5 LEGAL CLAIMS 6 As grounds for federal habeas relief in the original petition, petitioner alleged that: 1) the 7 denial of parole violated his due process rights; and 2) the BPH abused its discretion is denying 8 parole and delaying the next hearing for seven years. Docket No. 1 at 17, 21. 9 In 2011, the United States Supreme Court overruled a line of Ninth Circuit precedent that 10 had supported habeas review in California cases involving denials of parole by the BPH and/or the 11 governor. See Swarthout v. Cooke, 562 U.S. 216 (2011). The Supreme Court held that federal 12 habeas jurisdiction does not extend to review of the evidentiary basis for state parole decisions. 13 Because habeas relief is not available for errors of state law, and because the Due Process Clause 14 does not require correct application of California's “some evidence” standard for denial of parole, 15 federal courts may not intervene in parole decisions as long as minimum procedural protections 16 are provided. Id. at 220-21. Federal due process protection for such a state-created liberty interest 17 is “minimal,” the determination being whether “the minimum procedures adequate for due-process 18 protection of that interest” have been met. The inquiry is limited to whether the prisoner was given 19 the opportunity to be heard and received a statement of the reasons why parole was denied. Id. at 20 221; Miller v. Oregon Bd. of Parole and Post–Prison Supervision, 642 F.3d 711, 716 (9th Cir. 21 2011) (“The Supreme Court held in Swarthout that in the context of parole eligibility decisions the 22 due process right is procedural, and entitles a prisoner to nothing more than a fair hearing and a 23 statement of reasons for a parole board's decision.”). This procedural inquiry is “the beginning 24 and the end of” a federal habeas court's analysis of whether due process has been violated when a 25 state prisoner is denied parole. Swarthout at 220. The Ninth Circuit has acknowledged that after 26 Swarthout, substantive challenges to parole decisions are not cognizable in habeas. Roberts v. 27 Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011). 1 The Court previously advised petitioner that his argument that the BPH violated state law 2 and procedures in denying parole and delaying his next hearing only raised issues of state law. As 3 set forth in Swarthout, the federal due process protections do not include adherence to California 4 || procedures. Challenges to the BPH’s enactment of state laws and procedures must be presented in 5 state court. Petitioner presented his claims in state court, but his challenges were all denied. He 6 was told that this Court cannot overrule state court decisions or find that California courts 7 || incorrectly interpreted state law. The Court noted that petitioner did not allege or exhaust claims 8 that he was denied an opportunity to be heard or not provided a statement of the reasons why 9 || parole was denied. The record indicated that he was present at the hearing and provided a 10 statement why parole was denied. Docket No. 1 at 34-35, 57. 11 In his amended petition, petitioner argues that he was denied a right to be heard and that 12 || there was a biased decisionmaker. Docket No. 13 at 1-5. Even if there were a factual basis for 5 13 these new claims, which is not at all evident, petitioner has not exhausted the claims in state court. 14 || Docket No. 1 at 17, 21. Prisoners in state custody who wish to challenge collaterally in federal 3 15 habeas proceedings either the fact or length of their confinement are first required to exhaust state 16 || judicial remedies, either on direct appeal or through collateral proceedings, by presenting the 5 17 highest state court available with a fair opportunity to rule on the merits of each and every claim 5 18 they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 19 515-16 (1982). These claims are not exhausted and petitioner has not sought a stay; therefore, 20 || petitioner may not proceed. 21 CONCLUSION 22 1. This case is DISMISSED without prejudice. If petitioner exhausts these claims 23 and there is a factual basis for the claims, he may refile this case. 24 2. A Certificate of Appealability is DENIED. The Clerk shall close this case. 25 IT IS SO ORDERED. 26 Dated: April 6, 2020 27 28 JAMES DONATO 1 United States District Judge 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 PETER M. BERGNE, 4 Case No. 19-cv-08315-JD Plaintiff, 5 ‘ v. CERTIFICATE OF SERVICE 5 RONALD DAVIS, Defendant. 8 9 . . . I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 10 District Court, Northern District of California. 11 12 That on April 6, 2020, I SERVED a true and correct copyCies) of the attached, by placing 13 said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 14 depositing said envelope in the U.S. Mail, or by placing said copy(es) into an inter-office delivery 15 receptacle located in the Clerk's office. 16 & 17 || Peter M. Bergne ID: #E-57901 San Quentin State Prison 42 18 || West Block Center Housing Unit 4-W-45 19 San Quentin, CA 94974 20 21 Dated: April 6, 2020 22 23 Susan Y. Soong Clerk, United States District Court 25 26 By: ZA 2 Z “Low _ LI . CLARK, Deputy Clerk to the Honorable JAMES DONATO 28