# Robert Michael Vanleeuwen v. Warden > District Court, C.D. California · June 26, 2023 URL: https://www.frixlaw.com/law-library/cases/9983552 ## Case - **Court:** District Court, C.D. California - **Decided:** June 26, 2023 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9983552 ## How later opinions describe it (automated extraction) - applying O’Sullivan to 17 California ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 ROBERT MICHAEL VANLEEUWEN, No. ED 5:23-cv-00630-SVW-BFM 13 Petitioner, ORDER TO SHOW CAUSE 14 v. WHY HABEAS PETITION SHOULD NOT BE DISMISSED 15 WARDEN. 16 Respondent. 17 18 SUMMARY OF ORDER 19 This is a federal habeas petition challenging a January 2023 decision by 20 California’s Board of Parole Hearings (“BPH”) finding Petitioner Robert Michael 21 Vanleeuwen1 unsuitable for release on parole as a nonviolent offender. But 22 before a petitioner can file a federal habeas petition in federal court, he must 23 present his claims to the California Supreme Court—a process called 24 “exhaustion.” From what Petitioner has provided and from publicly available 25 dockets, it appears Petitioner has not exhausted his claims. And even if the 26 27 1 Petitioner also uses the name “Robert Michael Tafoya.” (See, e.g., ECF 28 No. 1 at 3). 1 claims were exhausted, it appears that they would still be barred pursuant to 2 the Supreme Court’s decision in Swarthout v. Cooke, 562 U.S. 216 (2011). That 3 case says that when a federal court reviews a state parole decision, it is limiting 4 to examining whether the parole board provided certain minimal procedural 5 safeguards. The Court therefore orders Petitioner to explain whether he has 6 presented his claims to the state courts and whether his parole challenge is 7 suitable for federal habeas review. If he has not exhausted his claims and/or his 8 claims do not fall within the scope of federal habeas review, he must tell the 9 Court why his case should not be dismissed. If Petitioner fails to timely 10 respond to this order, the Court will recommend that his Petition be 11 dismissed. 12 13 BACKGROUND 14 A. Relevant Procedural History 15 Petitioner is a California inmate currently housed in Ironwood State 16 Prison in Blythe, California. (See ECF No. 1 at 3; see also California Department 17 of Corrections and Rehabilitation Inmate Locator website at 18 inmatelocator.cdcr.ca.gov). He is serving a 25-year sentence following his 19 December 13, 2021, conviction in the Riverside County Superior Court for the 20 following offenses: stalking in violation of a protective order; concealing a child 21 from a legal custodian; and several counts each of perjury and of filing forged 22 documents. (See ECF No. 1 at 3-4; see also Riverside County Superior Court’s 23 online criminal case search for Case No. RIF2000128 at public- 24 access.riverside.courts.ca.gov/OpenAccess/). 25 As discussed below, in November 2016, California voters approved 26 Proposition 57, which expanded parole eligibility to certain nonviolent offenders 27 after they completed the full term for their primary offense (referred to as 28 1 “nonviolent parole”). On January 26, 2023, a BPH hearing officer issued a 2 Nonviolent Decision Form denying Petitioner release on nonviolent parole. The 3 Nonviolent Decision Form contains a written statement of reasons explaining 4 the denial. In particular, the BPH hearing officer considered Petitioner’s current 5 commitment offenses, his prior criminal record, and his institutional behavior 6 and activities, as well as a statement from Petitioner and two other individuals 7 attesting to his suitability for nonviolent parole. (ECF No. 1 at 3-7, 84-88, 98, 8 100). Based on these factors, the hearing officer concluded that Petitioner 9 “pose[d] a current, unreasonable risk of violence, or a current, unreasonable risk 10 of significant criminal activity to the community.” (See id. at 7). 11 Petitioner asserts that he submitted to the BPH a request to review the 12 hearing officer’s denial but has received no response. (ECF No. 1 at 2). Attached 13 to the Petition is a copy of a “Petition for Review” seeking reconsideration of the 14 nonviolent parole denial that Petitioner states was mailed to the BPH on 15 February 14, 2023. (See id. at 2, 8-109). In his reconsideration request, 16 Petitioner argued that there was no rational connection between the evidence 17 and the parole denial; there was insufficient evidence supporting a finding of 18 future danger; there was no evidence showing he posed a “significant” risk; and 19 there was an “abuse of discretion and violation of due process in denying a grant 20 of parole on speculation over/retaliation for the exercise of protected rights.” (See 21 id. at 8, 19). 22 B. Claims in Federal Habeas Petition 23 Petitioner filed his Petition in this Court on April 10, 2023. (ECF No. 1). 24 The Petition raises three claims relating to the BPH’s nonviolent parole denial. 25 1. Claim One 26 Petitioner argues that he was denied nonviolent parole in violation of due 27 process because the BPH hearing officer improperly based the denial on the fact 28 1 that Petitioner had exercised his constitutional rights to access the courts, free 2 speech, and association. (ECF No. 1 at 1). 3 2. Claim Two 4 Petitioner argues that the BPH’s failure to review the merits of the 5 nonviolent denial, as requested in his Petition for Review, amounts to a due 6 process violation. He asserts that the Petition for Review was filed on February 7 14, 2023, and that he subsequently sent “a number of requests,” but the BPH 8 “appears unwilling to conduct a review.” (ECF No. 1 at 2). 9 3. Claim Three 10 Petitioner argues that his constitutional rights to due process and equal 11 protection were violated because “no evidence exists to deny release or support 12 the findings,” and “this makes it clear” he is “being held to a different standard 13 when non-violent parole review is only about present evidence of danger.” (ECF 14 No. 1 at 2). 15 C. Facts about exhaustion 16 The Court notes that Petitioner did not use the Central District form 17 Petition for Writ of Habeas Corpus to raise his federal habeas claims (which 18 specifically asks for information about exhaustion), or any other form petition. 19 There is no indication in the Petition or attachments that he presented his 20 claims to the state courts. And a search of the docket of the California Supreme 21 Court does not show any filings by Petitioner. (See California Appellate Courts 22 Case Information website at appellatecases.courtinfo.ca.gov). 23 24 ANALYSIS 25 Rule 4 of the Rules Governing Section 2254 Cases in the United States 26 District Courts allows a district court to dismiss a petition if it “plainly appears 27 from the petition and any attached exhibits that the petitioner is not entitled to 28 1 relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 2 Cases. Based upon the Petition and the California state court records available 3 to the Court, and for the reasons discussed below, the Court orders Petitioner to 4 show cause why the Petition should not be dismissed for failure to exhaust 5 and/or failure to set forth cognizable claims. 6 A. Exhaustion 7 A state prisoner must exhaust his state court remedies before a federal 8 court may consider granting habeas corpus relief. See 28 U.S.C. § 2254(b)(1)(A); 9 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion 10 requirement, a habeas petitioner must “give the State the opportunity to pass 11 upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. 12 Henry, 513 U.S. 364, 365 (1995) (citation and quotation marks omitted). For a 13 petitioner in California state custody, this generally means that the petitioner 14 must have fairly presented his federal claims to the California Supreme Court. 15 See O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); see also Gatlin 16 v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O’Sullivan to 17 California). A claim has been fairly presented if the petitioner presents “both 18 the operative facts and the federal legal theory on which his claim is based.” 19 Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (citation and quotation marks 20 omitted); Gray v. Netherland, 518 U.S. 152, 162-63 (1996). The Court may raise 21 a petitioner’s failure to exhaust sua sponte—that is, even without the opposing 22 party raising it—and may summarily dismiss a petition without prejudice for 23 failure to exhaust. See Stone v. San Francisco, 968 F.2d 850, 855-56 (9th Cir. 24 1992); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 25 Here, there is no indication that Petitioner has presented his claims to the 26 California Supreme Court. Because his claims appear to be wholly unexhausted, 27 the Petition appears to be subject to summary dismissal without prejudice. See 28 1 28 U.S.C. § 2254(b)(1)(A). 2 B. Cognizable Claims 3 Even if Petitioner could satisfy the exhaustion requirement, it appears his 4 claims are not cognizable on federal habeas review for the reasons set forth 5 below. 6 After Proposition 57 was approved in November 2016, the California 7 Constitution was amended to include the following provision: “1) Parole 8 Consideration: Any person convicted of a nonviolent felony offense and 9 sentenced to state prison shall be eligible for parole consideration after 10 completing the full term for his or her primary offense.” Cal. Const. art. I, § 32. 11 Regulations governing nonviolent parole review require the BPH hearing officer 12 to weigh certain aggravating and mitigating factors concerning the inmate’s 13 commitment offense, prior criminal history, and institutional behavior and 14 activities, and also consider written statements submitted by the inmate (as 15 well as from the prosecuting agency and any victims). Then, “based on the 16 totality of the circumstances,” the hearing officer must “determine if the inmate 17 poses a current, unreasonable risk of violence or a current unreasonable risk of 18 significant criminal activity.” See 15 C.C.R.§ 2449.5. If a prisoner seeks judicial 19 review of a parole denial in state court, the state court must uphold the denial 20 if there is “some evidence” that supports the decision that the prisoner is 21 unsuitable for parole because he or she currently is dangerous. See In re 22 Lawrence, 44 Cal.4th 1181, 1191 (2008). 23 In Cooke, the Supreme Court considered California’s “some evidence” 24 standard and found that to the extent California law creates a liberty interest 25 in parole, “[w]hatever liberty interest exists is ... a state interest.” Cooke, 562 26 U.S. at 219-20 (emphasis in original). The Cooke Court explained that a state 27 liberty interest in parole does not create a federal right to be paroled, and that 28 1 compliance with California’s “some evidence” requirement is not a substantive 2 federal constitutional requirement. Id. at 220-21 (“No opinion of ours supports 3 converting California's ‘some evidence’ rule into a substantive federal 4 requirement.”). Rather, the Supreme Court made clear that the only cognizable 5 federal habeas issue is whether the prisoner was provided the following 6 “minimal” required procedural safeguards: the opportunity to be heard and a 7 statement of the reasons why parole was denied. Id. at 220 (citing Greenholtz v. 8 Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979)). “The 9 Constitution . . . does not require more.” Id. at 220 (citation and quotations 10 omitted). Determining whether a prisoner was afforded these minimal 11 procedural protections is “the beginning and the end of the federal habeas 12 courts’ inquiry into whether [a prisoner] received due process.” Id. 13 Here, Petitioner does not allege that he was not provided the opportunity 14 to be heard or a statement of the reasons denying parole, and the record 15 indicates these procedural due process requirements were met. Attached to the 16 Petition is a document titled “Statement from ‘Offender’,” which appears to be 17 the statement that Petitioner provided to the BPH prior to his nonviolent parole 18 review and that was considered by the hearing officer when determining 19 Petitioner’s parole suitability. (ECF No. 1 at 84-88). It also appears that 20 Petitioner received the Nonviolent Decision Form containing the written 21 statement of reasons for the hearing officer’s unsuitability finding. 22 The Court has no authority to consider parole challenges that do not 23 concern the noted minimal procedural due process protections. To the extent 24 Petitioner contends in Claims One and Three that the BPH relied on improper 25 reasons for finding him unsuitable for nonviolent parole, his claims are not 26 cognizable and cannot be considered on federal habeas review. Likewise, to the 27 extent that Petitioner in Claim Two argues that the BPH violated due process 28 1 || by failing to respond to his request for reconsideration, this also falls outside the 2 || limited range of the Court’s federal habeas inquiry and therefore is not 3 || cognizable. 4 || C. Order to Show Cause 5 Before the Court recommends dismissal of the action, the Court will give 6 || Petitioner an opportunity to respond. Petitioner is ORDERED to show cause 7 || why the Court should not recommend dismissal of the Petition for failure to 8 || exhaust his claims in state court and/or for failure to raise cognizable claims. 9 || Petitioner shall respond to this Order to Show Cause in writing no later than 10 || July 17, 2023. In his response, Petitioner must set forth his arguments, if any, 11 || as to why his Petition should not be dismissed for the reasons stated in this 12 || Order. 13 Petitioner’s failure to file a timely response as ordered may result 14 || in the Court recommending that his case be dismissed for failure to 15 || exhaust, failure to present cognizable claims, and/or for failure to 16 || prosecute and to follow court orders. 17 18 || DATED: June 26, 2023 (Mind 20 —SRIANNA FULLER MIRCHEFF 1 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9983552. Public record. Not legal advice.