Opinion

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 DAVID FINK, Case No. 2:25-cv-04727-SPG (RAO)

12 Petitioner, ORDER ACCEPTING REPORT AND

13 v. RECOMMENDATION OF UNITED

STATES MAGISTRATE JUDGE

14 KATHLEEN ALLISON,

15 Respondent.

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18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records

19 on file, and the Report and Recommendation of the United States Magistrate Judge

20 (“Report”). Further, the Court has engaged in a de novo review of those portions of

21 the Report to which objections may have been made.

22 The Report recommends the denial of the Petition, in which Petitioner

23 challenges a state board’s parole denial, and the dismissal of the action with

24 prejudice. (ECF No. 15). Petitioner’s objections to the Report, (ECF No. 16), do not

25 merit any change to any of the Report’s findings or recommendations.

26 Petitioner objects that he is entitled to proceed under 28 U.S.C. § 2241 rather

27 than 28 U.S.C. § 2254. (ECF No. 16 at 2). On the contrary, § 2254 is the proper

28 vehicle for a state prisoner, such as Petitioner, to challenge the denial of parole by a

1 state parole board. See Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1126 (9th

2 Cir. 2006) (“Section 2254 is the exclusive vehicle for a habeas petition by a state

3 prisoner in custody pursuant to a state court judgment, even when the petitioner is

4 not challenging his underlying state court conviction.” (internal quotation marks and

5 citation omitted)), overruled on other ground by Hayward v. Marshall, 603 F.3d 546,

6 555 (9th Cir. 2010) (en banc).

7 Petitioner next argues that he can prevail under 28 U.S.C. § 2254. (ECF No.

8 16 at 2-4). Specifically, Petitioner objects that “mandatory” language in the parole

9 rules requires that inmates “shall” be approved for parole if mitigating factors

10 outweigh aggravating factors, such as in his case. (Id.). Such language alone,

11 however, does not mandate that Petitioner be granted federal habeas relief. It merely

12 evidences a state-created liberty interest in parole. See Bergen v. Spaulding, 881 F.2d

13 719, 721 (9th Cir. 1989) (“Significant to the determination of whether parole or other

14 early release statutes create such a protectable liberty interest is their use of

15 mandatory language, including use of the commanding term ‘shall.’” (citing Bd. of

16 Pardons v. Allen, 482 U.S. 369, 377-81 (1987))). And if “a State creates a liberty

17 interest, the Due Process Clause requires fair procedures for its vindication—and

18 federal courts will review the application of those constitutionally required

19 procedures. In the context of parole, we have held that the procedures required are

20 minimal.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (per curiam). The Court

21 agrees with the Report that Petitioner received these procedures. Petitioner did not

22 argue that he did not receive an opportunity to be heard or a statement of reasons for

23 denying his request for parole, and the documents submitted with the Petition

24 evidence that such procedures were provided. (ECF No. 15 at 4 (citing ECF No. 1 at

25 29-30)). Petitioner’s related assertion that the mitigating and aggravating factors

26 were misapplied, (ECF No. 16 at 3), is unavailing. It is “no part” of the business of

27 federal courts “to reevaluate California’s application of its rules for determining

28 parole eligibility.” Roberts v. Hartley, 640 F.3d 1042, 1047 (9th Cir. 2011).

1 Finally, Petitioner moves to disqualify the Magistrate Judge under 28 U.S.C.

2 || § 455, arguing that the Magistrate Judge is biased based on her recommendations in

3 || prior cases involving other prisoners. (ECF No. 16 at 4-6). Petitioner fails to

4 || demonstrate bias on this ground. To disqualify a judge for bias under 28 U.S.C.

5 || § 455, the movant must show that “a reasonable person with knowledge of all the

6 || facts would conclude that the judge’s impartiality might reasonably be questioned.”

7 || United States v. Studly, 783 F.2d 934, 939 (9th Cir. 1986) (citation omitted). This

8 || bias must ordinarily stem from an “extrajudicial source,” and “judicial rulings alone

3 || almost never constitute valid basis for a bias or partiality motion.” Liteky v. United

10 || States, 510 U.S. 540, 554-55 (1994); see also United States v. Nelson, 718 F.2d 315,

11 | 321 (9th Cir. 1983) (“Adverse rulings do not constitute the requisite bias, even if they

12 || were erroneous.”). In addition, “opinions formed by the judge on the basis of facts

13 || introduced or events occurring in the course of the current proceedings, or of prior

14 || proceedings, do not constitute a basis for a bias or partiality motion unless they

15 || display a deep-seated favoritism or antagonism that would make fair judgment

16 || impossible.” Liteky, 510 U.S. at 555. Petitioner identifies no extrajudicial source of

17 || bias or any evidence of deep-seated favoritism. Accordingly, the Court denies

18 |) Petitioner’s request to disqualify the Magistrate Judge.

19 ORDER

20 It is ordered that (1) the Report and Recommendation of the Magistrate Judge

21 || is accepted and adopted; and (2) Judgment shall be entered denying the Petition with

22 || prejudice.

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24 || DATED: _October 7, 2025

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