The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 SAUL MIRANDA RAMIREZ, No. 1:24-cv-00163 JLT SKO (HC)
12 Petitioner, ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
13 (Doc. 5)
14 v. ORDER DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS AND DIRECTING
15 CDCR Secretary, CLERK OF COURT TO ENTER JUDGMENT
AND CLOSE CASE
16 Respondent.
ORDER DECLINING TO ISSUE
17 CERTIFICATE OF APPEALABILITY
18
19 Saul Miranda Ramirez is a state prisoner proceeding pro se and in forma pauperis with a
20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a parole suitability
21 determination by the California Board of Parole Hearings and asserting ineffective assistance of
22 counsel. The magistrate judge observed that the Supreme Court held “the federal habeas court’s
23 inquiry into whether a prisoner who has been denied parole received due process is limited to
24 determining whether the prisoner ‘was allowed an opportunity to be heard and was provided a
25 statement of the reasons why parole was denied.’” (Doc. 5 at 2, quoting Swarthout v. Cooke, 562
26 U.S. 216 (2001).) The magistrate judge found, “Petitioner does not contend he was denied these
27 procedural due process guarantees, and a review of the record shows that he was not.” (Id.)
28 Therefore, the magistrate judge found “Petitioner’s claims are foreclosed by the Supreme Court’s
1 decision in Swarthout,” and recommended the petition be “dismissed for failure to state a claim
2 upon which federal habeas relief can be granted.” (Id. at 2-3, emphasis omitted.)
3 Petitioner filed objections to the Findings and Recommendations. (Doc. 6.) Petitioner
4 contends the Court has jurisdiction to review his claim of ineffective assistance of counsel. He
5 cites several cases in support, including Nichols v. Arnold, 2018 WL 1684311 (C.D. Cal. 2018);
6 Nichols v. Pfeiffer, 2019 WL 4014429 (C.D. Cal. 2019); and Haro v. Fox, 2018 WL 4849674
7 (E.D. Cal. 2018). (Doc. 6 at 2.) Importantly, in these cases, the courts summarily dismissed the
8 claims of ineffective assistance because there is no right to counsel at parole consideration
9 hearings. Consequently, the court found there could not be a constitutional violation. See Pfeiffer,
10 2019 WL 4014429, *4 (citing Dorado v. Kerr, 454 F.2d 892, 896-97 (9th Cir.), cert. denied, 409
11 U.S. 934 (1972); Arnold, 2018 WL 1684311, *6; Fox, 2018 WL 4849674, *2. Petitioner also
12 cites to Lopez v. Warden, 388 Fed.Appx. 711 (9th Cir. 2010), but his reliance upon the case is
13 misplaced as Lopez was decided before Swarthout v. Cooke, 562 U.S. 216 (2011).
14 According to 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de novo review of the case.
15 Having carefully reviewed the entire file, including Petitioner’s objections, the Court concludes
16 the Findings and Recommendations are supported by the record and proper analysis.
17 In addition, the Court declines to issue a certificate of appealability. A state prisoner
18 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of
19 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537
20 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of
21 appealability is 28 U.S.C. § 2253, which provides as follows:
22 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court of
23 appeals for the circuit in which the proceeding is held.
24 (b) There shall be no right of appeal from a final order in a proceeding to test
the validity of a warrant to remove to another district or place for commitment or
25 trial a person charged with a criminal offense against the United States, or to test
the validity of such person's detention pending removal proceedings.
26
(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an
27 appeal may not be taken to the court of appeals from—
28 (A) the final order in a habeas corpus proceeding in which the
1 detention complained of arises out of process issued by a State
court; or
2
(B) the final order in a proceeding under section 2255.
3
(2) A certificate of appealability may issue under paragraph (1) only if the
4 applicant has made a substantial showing of the denial of a constitutional
right.
5
(3) The certificate of appealability under paragraph (1) shall indicate which
6 specific issue or issues satisfy the showing required by paragraph (2).
7 | Ifacourt denies a petition, the court may only issue a certificate of appealability when a
8 | petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. §
9 | 2253(c)(2). To make a substantial showing, Petitioner must establish that “reasonable jurists
10 | could debate whether (or, for that matter, agree that) the petition should have been resolved in a
11 | different manner or that the issues presented were ‘adequate to deserve encouragement to proceed
12 | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 US.
13 | 880, 893 (1983)).
14 In the present case, Petitioner has not made the required substantial showing of the denial
15 | of aconstitutional right to justify the issuance of a certificate of appealability. Reasonable jurists
16 | would not find the determination that Petitioner is not entitled to federal habeas corpus relief
17 || debatable, wrong, or deserving of encouragement to proceed further. Thus, the Court ORDERS:
18 1. The Findings and Recommendations issued on February 8, 2024 (Doc. 5) are
19 ADOPTED in full.
20 2. The petition for writ of habeas corpus is DISMISSED with prejudice.
21 3. The Clerk of Court is DIRECTED to enter judgment and close the case.
22 4. The Court declines to issue a certificate of appealability.
23 This order terminates the action in its entirety.
24
95 IT IS SO ORDERED.
26 Dated: _ March 6, 2024 :
TED STATES DISTRICT JUDGE
27
28