“When a federal claim has been presented to a 15 state court and the state court has denied relief, it may be presumed that the state court 16 adjudicated the claim on the merits in the absence of any indication or state-law procedural 17 principles to the contrary.”
How later courts described this case
- “When a federal claim has been presented to a 15 state court and the state court has denied relief, it may be presumed that the state court 16 adjudicated the claim on the merits in the absence of any indication or state-law procedural 17 principles to the contrary.”
- requiring that habeas 23 petitioner state his claims with sufficient specificity
- “[F]ederal habeas relief is not 25 available based on the misapplication of California’s ‘some evidence’ rule of judicial review.”
- “In order to fairly present an issue 9 to a state court, a [habeas] petitioner must present the substance of his claim to the state courts, 10 including a reference to a federal constitutional guarantee and a statement of facts that entitle the 11 petitioner to relief.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 HOWARD YOUNG, Case No. 1:18-cv-01339-DAD-JDP
12 Petitioner, FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
13 v. DISMISS
14 C. PFEIFFER, OBJECTIONS DUE IN FOURTEEN DAYS
15 Respondent. ECF No. 24
16 ORDER DENYING OUTSTANDING
MOTIONS
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ECF Nos. 28, 29, 30, 36
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ORDER DISMISSING MOTION TO RULE
19 ON PENDING MOTIONS AS MOOT
20 ECF No. 40
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Petitioner Howard Young, a state prisoner without counsel, petitions for a writ of habeas
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corpus under 28 U.S.C. § 2254. ECF No. 1. He seeks relief from a 2017 denial of parole. Id.
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Respondent moves for dismissal, arguing that petitioner did not exhaust his state-level remedies
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on one of his claims and that other claims are non-cognizable. ECF No. 24. Following
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respondent’s motion, petitioner has twice moved to amend his petition, has requested leave to
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conduct discovery, and has asked the court to appoint counsel and to rule on all pending motions.
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1 ECF Nos. 29, 36, 28, 30, 40. For the reasons below, we find that petitioner exhausted his claims
2 at the state level. However, because all of his claims either lack merit or are not cognizable, we
3 recommend granting respondent’s motion to dismiss; we deny all remaining motions.
4 I. Background
5 Petitioner seeks a writ of habeas corpus, claiming that (1) his parole board hearing
6 violated his due process rights; (2) his Sixth Amendment right to counsel was violated when he
7 was not provided counsel before the parole board; (3) the parole board’s failure to take his mental
8 health into account violated his Eighth Amendment right to be free from cruel and unusual
9 punishment; (4) the denial of transitional housing and reentry programs and the application of 19
10 mandatory points violated his constitutional rights; (5) the parole board hearing violated his right
11 to equal protection under the Fourteenth Amendment; and (6) application of California’s “some
12 evidence” standard violated his constitutional rights. ECF No. 1.
13 Respondent seeks dismissal, arguing that four of the petitioner’s claims—due process
14 before the parole board, right to counsel before the parole board, freedom from cruel and unusual
15 punishment in parole suitability determinations, and denial of access to transitional housing and
16 reentry programs—are not cognizable on federal habeas review. See ECF No. 24. Respondent
17 does not address petitioner’s remaining two claims: violation of his right to equal protection
18 before the parole board and wrongful application of California’s “some evidence” standard.
19 II. Discussion
20 Under Rule 2(c) of the Rules Governing Section 2254 Cases, habeas petitioners must
21 “specify all the grounds for relief available to [him]” and “state the facts supporting each
22 ground.” See Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990) (requiring that habeas
23 petitioner state his claims with sufficient specificity). This court may dismiss a deficient habeas
24 petition at various stages. “If it plainly appears from the petition and any attached exhibits that
25 the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and
26 direct the clerk to notify the petitioner.” R. Governing § 2254 Cases 4. The court may dismiss a
27 petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the
28 respondent’s motion to dismiss, or after an answer has been filed. See id. 8 advisory comm. note.
1 In this case, defendant has filed a motion seeking dismissal of four of petitioner’s six claims and
2 has yet to file an answer. We will consider petitioner’s two remaining claims on our own motion.
3 See id.
4 A. Failure to Exhaust
5 We first consider whether petitioner has met the exhaustion requirement. When a habeas
6 petitioner has presented the state court with the factual and legal bases of his claim, the state court
7 has had sufficient opportunity to hear an issue. See Weaver v. Thompson, 197 F.3d 359, 364 (9th
8 Cir. 1999); Kyzar v. Ryan, 780 F.3d 940, 947 (9th Cir. 2015) (“In order to fairly present an issue
9 to a state court, a [habeas] petitioner must present the substance of his claim to the state courts,
10 including a reference to a federal constitutional guarantee and a statement of facts that entitle the
11 petitioner to relief.”). Exhaustion is satisfied once a claim is fairly presented to the state court,
12 even if the state court’s order denying the petition is silent on the claim. See Dye v. Hofbauer,
13 546 U.S. 1, 3 (2005) (per curiam); Smith v. Digmon, 434 U.S. 332, 333 (1978) (per curiam);
14 Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a
15 state court and the state court has denied relief, it may be presumed that the state court
16 adjudicated the claim on the merits in the absence of any indication or state-law procedural
17 principles to the contrary.”).
18 Here, respondent argues that petitioner failed to exhaust his claim that prison officials
19 violated his constitutional rights when he was inappropriately denied transitional housing and
20 access to a reentry program and assigned 19 mandatory points. ECF No. 24 at 3-4. In his
21 opposition, petitioner states that he exhausted this claim before the state supreme court in a
22 separate habeas petition not cited by the respondent. ECF No. 26 at 1. We agree; in the cited
23 petition, he argued that he should be “allowed to participate in transitional programming,
24 including reentry” programming. Id. at 20-21; see In re Young (Howard) on H.C., No. S250204
25 (Cal. Dec. 19, 2018). We find that petitioner fully exhausted his housing and reentry
26 programming claim, and we will consider it here, along with petitioner’s remaining claims.1
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1 Had petitioner not exhausted, we could still reach the merits. If it is “perfectly clear” that a
28 petitioner has “failed to present a colorable federal claim,” we may dismiss the claim on the
1 B. Due Process Violation
2 In our order requiring a response to the petition, we recognized that petitioner’s claims
3 center on an alleged violation of his due process rights during his parole hearing, for which
4 habeas relief is difficult to obtain. ECF No. 13 at 1. “The habeas statute unambiguously provides
5 that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground that
6 he is in custody in violation of the Constitution or laws or treaties of the United States.’” Wilson
7 v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). “[F]ederal habeas
8 corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991)
9 (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). In Swarthout, the Supreme Court
10 considered the California state parole hearing procedure afforded California state prisoners. See
11 Swarthout v. Cooke, 562 U.S. 216, 220 (2011). The relevant due process inquiry on federal
12 habeas review is whether state procedures met certain minimum procedural requirements. Id.
13 Constitutionally adequate process includes “an opportunity to be heard” and “a statement of the
14 reasons why parole was denied.” Greenholtz v. Inmates of Neb. Penal and Correctional
15 Complex, 442 U.S. 1, 6 (1979). The Constitution requires no more. Id. In Swarthout, the Court
16 found the California parole procedures adequate, declining to require more than a hearing and a
17 statement of the reasons for denial. See Swarthout, 562 U.S. at 220.
18 Here, petitioner argues that his due process rights were violated because he was not
19 allowed to attend his parole hearing or appeal its outcome, and the hearing panel was not
20 composed of three commissioners. Petitioner got notice on July 1, 2017 that his parole review
21 had been scheduled. ECF No. 24 at 12. He had 30 days to state his case for parole in writing. Id.
22 The parole review took place on September 28, 2017, nearly two months after the initial notice.
23 ECF No. 26 at 34. When he was denied parole following the review hearing, petitioner filed a
24 request for reconsideration, and the parole board’s decision was upheld. Id. Respondent
25 provided petitioner with a list of reasons for the denial. Id. Under Swarthout, no additional
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merits, regardless of a failure to exhaust. See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.
28 2005); 28 U.S.C. § 2254(b)(2); Padilla v. Terhune, 309 F.3d 614, 620-21 (9th Cir. 2002).
1 procedure is required. Petitioner’s due process claims related to his parole hearing are without
2 merit, and we recommend their dismissal.
3 C. Right to Counsel
4 Petitioner claims that his Sixth Amendment right to counsel was violated because he was
5 not afforded counsel at his parole hearing. He is mistaken. “There is no clearly established right
6 to counsel at parole suitability hearings.” Lopez v. California, No. 1:14-cv-00504 MJS HC, 2014
7 U.S. Dist. LEXIS 63999, at *14 (E.D. Cal. May 8, 2014). The Supreme Court has declined to
8 create a rule requiring counsel at all parole hearings, stating that the “decision as to the need for
9 counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state
10 authority charged with responsibility for administering the probation and parole system.”
11 Gagnon v. Scarpelli, 411 U.S. 778, 788-89 (1973). Petitioner’s right to counsel claim fails and
12 we recommend that it be dismissed.
13 D. Equal Protection Violation
14 Petitioner claims that the failure to appoint counsel for his parole hearing, the denial of the
15 opportunity to appear at the hearing, the inability to appeal the hearing’s outcome, and the
16 composition of the panel violated his right to equal protection under the law. This claim fails.
17 “Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from
18 invidious discrimination based on race, religion, or membership in a protected class subject to
19 restrictions and limitations necessitated by legitimate penological interests.” Brooks v. Borders,
20 No. CV 17-02535-RGK (DFM), U.S. Dist. 2018 LEXIS 178836, at *5 (C.D. Cal. Feb. 13, 2018)
21 (citing Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). An equal protection claim can be made
22 out if a petitioner alleges intentional discrimination based on the petitioner’s membership in a
23 protected class. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A claim can
24 also be made out if a petitioner shows that the respondent treated him differently than other
25 similarly-situated individuals for a reason not rationally related to a legitimate state purpose. See
26 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Here, petitioner has not claimed any
27 discrimination based on race, religion, or membership in a protected class. He has not presented
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1 any evidence of differential treatment as compared to individuals of a similarly-situated class.
2 Therefore, his equal protection claim fails and we recommend that it be dismissed.
3 E. Cruel and Unusual Punishment
4 Petitioner claims that respondent’s failure to take his mental health into account in
5 determining his parole status amounts to a violation of the Eighth Amendment prohibition against
6 cruel and unusual punishment. Specifically, petitioner claims that his mental illness played a role
7 in his rule violations. On habeas review, “the federal court’s scope of review of parole board
8 decisions is very limited.” Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987). “If
9 there is no constitutional violation . . . the court may not substitute its decision for that of the
10 [b]oard.” Id. The court’s inquiry here is limited to whether “the minimum procedures adequate
11 for due-process protection” were followed. Swarthout, 562 U.S. at 221. We will not inquire into
12 the adequacy of evidence considered by a parole board. See Pedro, 825 F.2d at 1399.
13 Because we find that the procedures afforded by the parole board did not violate
14 petitioner’s constitutional rights, we decline to determine whether the parole board adequately
15 considered petitioner’s mental health status in its decision.2 We recommend that petitioner’s
16 claim be dismissed.
17 F. “Some Evidence” Standard of Review
18 Petitioner claims that the parole board’s application of California’s “some evidence”
19 standard violated his constitutional rights. Generally, California’s “some evidence” standard
20 requires that a parole board’s decision be supported by at least some evidence in the record. In re
21 Shaputis, 44 Cal. 4th 1241, 1246 (Cal. 2008). This is not, however, a federal constitutional rule.
22 The Supreme Court definitively stated that federal courts should not convert California’s “some
23 evidence” rule “into a substantive federal requirement.” Swarthout, 562 U.S. at 220-21; see
24 Ledesma v. Marshall, 466 F. App’x 647, 648 (9th Cir. 2012) (“[F]ederal habeas relief is not
25 available based on the misapplication of California’s ‘some evidence’ rule of judicial review.”).
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27 2 Contrary to petitioner’s assertion, the review board did consider a long list of aggravating and
mitigating factors when making their decision and provided these in writing to petitioner. See
28 ECF No. 26 at 35-39.
1 Therefore, petitioner’s claim that the application of the “some evidence” standard violated his
2 constitutional rights is not cognizable and we recommend that it be dismissed.
3 G. Housing and Programs Denial and Mandatory Points
4 Finally, petitioner claims that the denial of transitional housing and reentry programming
5 and the application of 19 mandatory points violated his constitutional rights. Under section 2254,
6 a writ of habeas corpus is available to prisoners challenging the fact or duration of their
7 confinement. See Heck v. Humphrey, 512 U.S. 477, 481 (1994). In contrast, if a favorable
8 judgment for the petitioner would not “necessarily lead to his immediate or earlier release from
9 confinement,” the court lacks habeas corpus jurisdiction. See Nettles v. Grounds, 830 F.3d 922,
10 935-37 (9th Cir. 2016). “Requests for relief turning on circumstances of confinement may be
11 presented in a [42 U.S.C.] § 1983 action.” Muhammad v. Close, 540 U.S. 749, 750 (2004). Here,
12 petitioner’s housing and programming complaints are challenges to the conditions of his
13 confinement, not to the fact or duration thereof. Petitioner’s challenge to the application of 19
14 mandatory points is vague and conclusory. He explains neither the significance of the points nor
15 how the points deprived him of any constitutional right. Without additional facts, we cannot
16 determine whether the mandatory points affected the duration of his confinement. Therefore, we
17 recommend dismissal of petitioner’s housing, programming, and mandatory points claims as non-
18 cognizable.
19 III. Motions to Amend
20 Petitioner submitted two motions to amend his petition. ECF No. 29, 36. Both motions
21 seek the same general relief: leave to add a claim that petitioner’s due process rights were
22 violated at the parole hearing. See ECF No. 29 at 1; ECF No. 36 at 1. Courts “should freely give
23 leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, we may deny
24 leave to amend under Rule 15(a) when such amendment would be futile. See Foman v. Davis,
25 371 U.S. 178, 182 (1962). Petitioner seeks leave to amend his petition with a claim already
26 considered and found meritless here.3 See discussion supra Part B. An additional claim that
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3 Petitioner cites to Swarthout in support of his motion, but it provides no support. Under
28 Swarthout, this court’s inquiry is limited to whether petitioner was given an opportunity to be
1 petitioner’s due process rights were violated at the parole hearing would be futile. Therefore,
2 petitioner’s motions to amend are denied.
3 IV. Motion for Discovery
4 Petitioner seeks to conduct discovery. ECF No. 28. A habeas petitioner, “unlike the usual
5 civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v.
6 Gramley, 520 U.S. 899, 904 (1997). Under Rule 6(a) of the Rules Governing Section 2254
7 Cases, a federal district court may authorize discovery in a habeas proceeding for good cause.
8 See id. at 904-05. Good cause exists if “specific allegations before the court show reason to
9 believe that the petitioner may, if the facts are fully developed,” demonstrate entitlement to
10 habeas relief. Smith v. Mahoney, 611 F.3d 978, 996-97 (9th Cir. 2010). However, “bald
11 assertions and conclusory allegations” do not “provide a basis for imposing upon the state the
12 burden of responding in discovery to every habeas petitioner who wishes to seek such discovery.”
13 Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (citing Wacht v. Cardwell, 604 F.2d 1245,
14 1246 n.2 (9th Cir. 1979)).
15 Here, petitioner seeks copies of all documents in his prison file, including documents that
16 were considered during the parole review process. ECF No. 28 at 1. Petitioner has not given the
17 court “reason to believe that the petitioner may, if the facts are fully developed,” demonstrate
18 entitlement to habeas relief. Smith, 611 F.3d at 996-97. We therefore deny the motion for
19 discovery.
20 V. Motion to Appoint Counsel
21 Petitioner moves for the appointment of counsel. ECF No. 30. He specifically seeks
22 counsel to review documents that he requested in his motion for discovery. ECF No. 28. A
23 petitioner in a habeas proceeding does not have an absolute right to counsel. See Anderson v.
24 Heinze, 258 F.2d 479, 481 (9th Cir. 1958). There are three circumstances in which appointment
25 of counsel may be required in habeas proceedings. First, appointment of counsel is required for
26 an indigent person seeking to vacate or set aside a death sentence in post-conviction proceedings
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28 heard by the parole board and an explanation of the parole board’s denial. Petitioner got both.
1 under 28 U.S.C §§ 2254 or 2255. See 18 U.S.C. § 3599(a)(2). Second, appointment of counsel
2 may be required if an evidentiary hearing is warranted. See R. Governing § 2254 Cases 8(c).
3 Third, appointment of counsel may be necessary for effective discovery. See id. at 6(a). None of
4 these situations is present here.
5 This court is further authorized to appoint counsel for an indigent petitioner in a habeas
6 corpus proceeding if the court determines that the interests of justice require the assistance of
7 counsel. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 18 U.S.C. § 3006A(a)(2)(B).
8 However, “[i]ndigent state prisoners applying for habeas corpus relief are not entitled to
9 appointed counsel unless the circumstances of a particular case indicate that appointed counsel is
10 necessary to prevent due process violations.” Chaney, 801 F.2d at 1196. In assessing whether to
11 appoint counsel, the court evaluates the petitioner’s likelihood of success on the merits as well as
12 the ability of the petitioner to articulate his claims without counsel, considering the complexity of
13 the legal issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
14 We cannot conclude at this point that counsel is necessary to prevent a due process
15 violation. The legal issues currently involved are not exceptionally complicated, petitioner is able
16 to articulate his claims, and he has not demonstrated that he is likely to succeed on the merits.
17 Specifically, petitioner seeks counsel to review discovery. Because we deny the motion for
18 discovery, appointed counsel is not necessary for this purpose. We find that appointed counsel is
19 not necessary to guard against a due process violation and that the interests of justice do not
20 require the appointment of counsel. Petitioner’s motion is denied.
21 VI. Motion to Rule on Pending Motions
22 Petitioner requested rulings on his outstanding motions. ECF No. 40. Because all
23 outstanding motions have been addressed here, we dismiss this motion as moot.
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VII. Certificate of Appealability
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A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district
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court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;
27
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases
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1 requires a district court to issue or deny a certificate of appealability when entering a final order
2 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d
3 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes
4 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
5 standard requires the petitioner to show that “jurists of reason could disagree with the district
6 court’s resolution of his constitutional claims or that jurists could conclude the issues presented
7 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord
8 Slack v. McDaniel, 529 U.S. 473, 484 (2000).
9 Here, petitioner has not made a substantial showing of the denial of a constitutional right.
10 Thus, the court should decline to issue a certificate of appealability.
11 VIII. Order
12 Accordingly,
13 1. Petitioner’s motions to amend are denied. ECF No. 29, 36.
14 2. Petitioner’s motion for discovery is denied. ECF No. 28.
15 3. Petitioner’s motion to appoint counsel is denied. ECF No. 30.
16 4. Petitioner’s motion to rule on pending motions is dismissed as moot. ECF No. 40.
17 IX. Findings and Recommendations
18 We recommend that the court grant respondent’s motion to dismiss. ECF No. 24.
19 These findings and recommendations are submitted to the U.S. District Court judge presiding
20 over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the
21 United States District Court, Eastern District of California. Within 14 days of the service of the
22 findings and recommendations, any party may file written objections to the findings and
23 recommendations with the court and serve a copy on all parties. That document must be
24 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge
25 will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).
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> IT IS SO ORDERED.
V4), —N prssann —
Dated: _ February 25, 2020
4 UNI STATES MAGISTRATE JUDGE
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