1 O 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 ALEJANDRO ALVE, Case No. 2:21-cv-08316-CAS (AFM) 12 Petitioner, ORDER SUMMARILY DISMISSING 13 PETITION FOR WRIT OF HABEAS v. CORPUS 14 NEUSCHMID, Warden, 15 Respondent. 16 17 18 19 20 Petitioner, a state prisoner, filed this petition for a writ of habeas corpus on 21 October 18, 2021. See 28 U.S.C. § 2254. For the following reasons, the petition is 22 subject to summary dismissal. See Rule 4 of the Rules Governing Section 2254 Cases 23 (“If it plainly appears from the face of the petition ... that the petitioner is not entitled 24 to relief in the district court, the judge must dismiss the petition[.]”). 25 BACKGROUND 26 In 1976, Petitioner was convicted of two counts of murder. He originally was 27 sentenced to death. That sentence was vacated, and Petitioner was sentenced to state 28 prison for an indeterminate term of seven years to life. (ECF 1 at 3.) 1 In 2017, Petitioner received his twelfth parole hearing. At the conclusion of 2 the hearing, the California Board of Parole Hearings (“Board”) found Petitioner not 3 suitable for parole. (ECF 1 at 3, 52-164.) 4 The present petition does not challenge Petitioner’s underlying conviction or 5 sentence. Rather, it challenges the Board’s 2017 decision and alleges the following 6 claims for relief: (1) the Board “inappropriately weighed Petitioner’s claim of 7 innocence in evaluating his ‘insight to the life offense’ to conclude he was a threat to 8 society”; (2) the Board abused its discretion by finding that some evidence supported 9 a nexus between Petitioner’s past rules violations and his present danger if released; 10 (3) the Board denied Petitioner due process by failing to address how his age, long- 11 term confinement, and health conditions impacted his risk of future violence in 12 contradiction to the California Elderly Parole Program; and (4) the Board’s denial of 13 parole imposed a sentence that is grossly disproportionate to Petitioner’s culpability 14 in violation of the Eighth Amendment. (ECF 1 at 13-50.) 15 DISCUSSION 16 There is “no constitutional or inherent right of a convicted person to be 17 conditionally released before the expiration of a valid sentence.” Greenholtz v. 18 Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). While 19 California has created a liberty interest in parole that is entitled to protection under 20 the Due Process Clause, Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir. 2011), 21 those procedural protections are “minimal.” Swarthout v. Cooke, 562 U.S. 216, 220 22 (2011) (per curiam). As the Supreme Court has made clear, due process requires only 23 that the state furnish an inmate seeking parole with an opportunity to be heard and a 24 statement of reasons for the denial of parole. Cooke, 562 U.S. at 220; Roberts, 640 25 F.3d at 1046. Indeed, consideration of whether a prisoner was provided these minimal 26 procedural protections is “the beginning and the end of the federal habeas courts’ 27 inquiry into whether [petitioner] received due process.” Cooke, 562 U.S. at 220; see 28 also Miller v. Or. Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 716 (9th 1 Cir. 2011) (“The Supreme Court held in Cooke that in the context of parole eligibility 2 decisions the due process right is procedural, and entitles a prisoner to nothing more 3 than a fair hearing and a statement of reasons for a parole board’s decision[.]”) 4 Here, Petitioner does not contend that he was deprived of an opportunity to be 5 heard or a statement of the reasons for the denial of parole. In fact, he attaches the 6 transcript of the parole hearing along with the Board’s written decision, which reveals 7 that Petitioner was present at the parole hearing, was represented by counsel, was 8 provided the opportunity to be heard, testified on his own behalf, and was provided 9 a written statement of the Board’s reason for denying parole. (ECF 1 at 52-164.) 10 Consequently, it is clear from the face of the petition and its exhibits that Petitioner 11 received all of the process that was due. See Govind v. California Dep't of Corr. & 12 Rehab., 2018 WL 2448469, at *3 (C.D. Cal. May 30, 2018) (clear from hearing 13 transcript that the petitioner received minimal protections of due process where 14 petitioner “had a lengthy hearing during which petitioner and his counsel had ample 15 opportunity to be heard, and the Board issued a written statement of its reasons for 16 denying petitioner parole”). 17 Petitioner’s first three claims for relief allege that the Board erroneously found 18 him unsuitable for parole because it improperly weighed evidence such as 19 Petitioner’s refusal to admit guilt, his past rules violations, his age, and his health. 20 Essentially, Petitioner disputes the Board’s conclusion that he would pose a risk to 21 public safety if released. Petitioner’s claims are the very type that Cooke made clear 22 are not cognizable on federal habeas review. Cooke flatly rejected the contention that 23 the federal Due Process Clause contains a guarantee of evidentiary sufficiency with 24 respect to a parole determination. Cooke, 562 U.S. at 220-221; see also Miller, 642 25 F.3d at 716-717 (the only federal habeas issue cognizable is not whether the Board’s 26 parole denial was “substantively reasonable” or whether the Board correctly applied 27 state parole standards; rather, the sole issue is simply “whether the state provided 28 [petitioner] with the minimum procedural due process outlined in Cooke”); Tatum v. 1 Chappell, 2015 WL 1383516, at *2 (C.D. Cal. Mar. 24, 2015) (petitioner’s 2 “invitation to the Court to re-weigh the evidence considered by the Board and reach 3 a different conclusion about petitioners risk of danger if released” was foreclosed by 4 Cooke). 5 Because Petitioner received a Constitutionally sufficient hearing, that is the 6 beginning and end of the question. Cooke, 562 U.S. at 220. Accordingly, summary 7 dismissal of Petitioner’s claims challenging the Board’s decision is warranted. See, 8 e.g., Cleveland v. Warden, 2019 WL 7037773, at *4 (C.D. Cal. Dec. 20, 2019), 9 summarily dismissing petition where petitioner did not complain that the “minimal” 10 procedures required by due process were not provided but rather that the Board’s 11 decision was not supported by evidence); Keeton v. Asuncion, 2017 WL 262064, at 12 *3 (C.D. Cal. Jan. 17, 2017) (summary dismissal appropriate where transcript of 13 parole hearing revealed petitioner received minimal protections of due process). 14 Petitioner’s remaining claim fares no better. Petitioner contends that the denial 15 of parole has rendered his sentence cruel and unusual in violation of the Eighth 16 Amendment. No clearly established Supreme Court authority holds that the denial of 17 parole to a prisoner who is serving an indeterminate life sentence could render an 18 otherwise constitutional sentence cruel and unusual punishment. See Greenholtz, 442 19 U.S. at 7 (“There is no constitutional or inherent right of a convicted person to be 20 conditionally released before the expiration of a valid sentence.”). Courts faced with 21 claims like Petitioner’s have consistently held that a denial of parole from an 22 underlying valid indeterminate life sentence1 does not implicate the Eighth 23
24 1 Petitioner does not directly challenge the constitutionality of his sentence, and any such challenge would lack merit.
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1 O 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 ALEJANDRO ALVE, Case No. 2:21-cv-08316-CAS (AFM) 12 Petitioner, ORDER SUMMARILY DISMISSING 13 PETITION FOR WRIT OF HABEAS v. CORPUS 14 NEUSCHMID, Warden, 15 Respondent. 16 17 18 19 20 Petitioner, a state prisoner, filed this petition for a writ of habeas corpus on 21 October 18, 2021. See 28 U.S.C. § 2254. For the following reasons, the petition is 22 subject to summary dismissal. See Rule 4 of the Rules Governing Section 2254 Cases 23 (“If it plainly appears from the face of the petition ... that the petitioner is not entitled 24 to relief in the district court, the judge must dismiss the petition[.]”). 25 BACKGROUND 26 In 1976, Petitioner was convicted of two counts of murder. He originally was 27 sentenced to death. That sentence was vacated, and Petitioner was sentenced to state 28 prison for an indeterminate term of seven years to life. (ECF 1 at 3.) 1 In 2017, Petitioner received his twelfth parole hearing. At the conclusion of 2 the hearing, the California Board of Parole Hearings (“Board”) found Petitioner not 3 suitable for parole. (ECF 1 at 3, 52-164.) 4 The present petition does not challenge Petitioner’s underlying conviction or 5 sentence. Rather, it challenges the Board’s 2017 decision and alleges the following 6 claims for relief: (1) the Board “inappropriately weighed Petitioner’s claim of 7 innocence in evaluating his ‘insight to the life offense’ to conclude he was a threat to 8 society”; (2) the Board abused its discretion by finding that some evidence supported 9 a nexus between Petitioner’s past rules violations and his present danger if released; 10 (3) the Board denied Petitioner due process by failing to address how his age, long- 11 term confinement, and health conditions impacted his risk of future violence in 12 contradiction to the California Elderly Parole Program; and (4) the Board’s denial of 13 parole imposed a sentence that is grossly disproportionate to Petitioner’s culpability 14 in violation of the Eighth Amendment. (ECF 1 at 13-50.) 15 DISCUSSION 16 There is “no constitutional or inherent right of a convicted person to be 17 conditionally released before the expiration of a valid sentence.” Greenholtz v. 18 Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). While 19 California has created a liberty interest in parole that is entitled to protection under 20 the Due Process Clause, Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir. 2011), 21 those procedural protections are “minimal.” Swarthout v. Cooke, 562 U.S. 216, 220 22 (2011) (per curiam). As the Supreme Court has made clear, due process requires only 23 that the state furnish an inmate seeking parole with an opportunity to be heard and a 24 statement of reasons for the denial of parole. Cooke, 562 U.S. at 220; Roberts, 640 25 F.3d at 1046. Indeed, consideration of whether a prisoner was provided these minimal 26 procedural protections is “the beginning and the end of the federal habeas courts’ 27 inquiry into whether [petitioner] received due process.” Cooke, 562 U.S. at 220; see 28 also Miller v. Or. Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 716 (9th 1 Cir. 2011) (“The Supreme Court held in Cooke that in the context of parole eligibility 2 decisions the due process right is procedural, and entitles a prisoner to nothing more 3 than a fair hearing and a statement of reasons for a parole board’s decision[.]”) 4 Here, Petitioner does not contend that he was deprived of an opportunity to be 5 heard or a statement of the reasons for the denial of parole. In fact, he attaches the 6 transcript of the parole hearing along with the Board’s written decision, which reveals 7 that Petitioner was present at the parole hearing, was represented by counsel, was 8 provided the opportunity to be heard, testified on his own behalf, and was provided 9 a written statement of the Board’s reason for denying parole. (ECF 1 at 52-164.) 10 Consequently, it is clear from the face of the petition and its exhibits that Petitioner 11 received all of the process that was due. See Govind v. California Dep't of Corr. & 12 Rehab., 2018 WL 2448469, at *3 (C.D. Cal. May 30, 2018) (clear from hearing 13 transcript that the petitioner received minimal protections of due process where 14 petitioner “had a lengthy hearing during which petitioner and his counsel had ample 15 opportunity to be heard, and the Board issued a written statement of its reasons for 16 denying petitioner parole”). 17 Petitioner’s first three claims for relief allege that the Board erroneously found 18 him unsuitable for parole because it improperly weighed evidence such as 19 Petitioner’s refusal to admit guilt, his past rules violations, his age, and his health. 20 Essentially, Petitioner disputes the Board’s conclusion that he would pose a risk to 21 public safety if released. Petitioner’s claims are the very type that Cooke made clear 22 are not cognizable on federal habeas review. Cooke flatly rejected the contention that 23 the federal Due Process Clause contains a guarantee of evidentiary sufficiency with 24 respect to a parole determination. Cooke, 562 U.S. at 220-221; see also Miller, 642 25 F.3d at 716-717 (the only federal habeas issue cognizable is not whether the Board’s 26 parole denial was “substantively reasonable” or whether the Board correctly applied 27 state parole standards; rather, the sole issue is simply “whether the state provided 28 [petitioner] with the minimum procedural due process outlined in Cooke”); Tatum v. 1 Chappell, 2015 WL 1383516, at *2 (C.D. Cal. Mar. 24, 2015) (petitioner’s 2 “invitation to the Court to re-weigh the evidence considered by the Board and reach 3 a different conclusion about petitioners risk of danger if released” was foreclosed by 4 Cooke). 5 Because Petitioner received a Constitutionally sufficient hearing, that is the 6 beginning and end of the question. Cooke, 562 U.S. at 220. Accordingly, summary 7 dismissal of Petitioner’s claims challenging the Board’s decision is warranted. See, 8 e.g., Cleveland v. Warden, 2019 WL 7037773, at *4 (C.D. Cal. Dec. 20, 2019), 9 summarily dismissing petition where petitioner did not complain that the “minimal” 10 procedures required by due process were not provided but rather that the Board’s 11 decision was not supported by evidence); Keeton v. Asuncion, 2017 WL 262064, at 12 *3 (C.D. Cal. Jan. 17, 2017) (summary dismissal appropriate where transcript of 13 parole hearing revealed petitioner received minimal protections of due process). 14 Petitioner’s remaining claim fares no better. Petitioner contends that the denial 15 of parole has rendered his sentence cruel and unusual in violation of the Eighth 16 Amendment. No clearly established Supreme Court authority holds that the denial of 17 parole to a prisoner who is serving an indeterminate life sentence could render an 18 otherwise constitutional sentence cruel and unusual punishment. See Greenholtz, 442 19 U.S. at 7 (“There is no constitutional or inherent right of a convicted person to be 20 conditionally released before the expiration of a valid sentence.”). Courts faced with 21 claims like Petitioner’s have consistently held that a denial of parole from an 22 underlying valid indeterminate life sentence1 does not implicate the Eighth 23
24 1 Petitioner does not directly challenge the constitutionality of his sentence, and any such challenge would lack merit. There is no question that Petitioner’s underlying indeterminate life sentence 25 imposed on the basis of his conviction of two counts of murder is Constitutionally permissible. See 26 Harmelin v. Michigan, 501 U.S. 957, 994–995 (1991) (holding that a sentence of life without the possibility of parole imposed upon a first-time offender convicted of possessing 672 grams of 27 cocaine did not amount to cruel and unusual punishment); Harris v. Wright, 93 F.3d 581, 584–585 (9th Cir. 1996) (holding that a sentence of life in prison without the possibility of parole does not 28 violate the Eighth Amendment when the crime is murder). 1 || Amendment. See, e.g., Johnson v. Finn, 468 F. App’x 680, *684 (9th Cir. 2012) 2 || (rejecting a claim that Board’s denial of parole subjected the petitioner to cruel and 3 || unusual punishment because the petitioner was serving an indeterminate life sentence 4 | based upon his murder conviction, and stating that even if the Board’s parole decision 5 | converted the petitioner’s sentence to one of life without the possibility of parole, it 6 || would not violate the Eighth Amendment); Durr v. Davis, 2016 WL 1553886, at *2 7 I (C.D. Cal. Mar. 7, 2016) (denial of parole from an underlying valid sentence fails to 8 || implicate the Eighth Amendment), report and recommendation adopted, 2016 WL 9 |) 1532225 (C.D. Cal. Apr. 13, 2016); Tatum, 2015 WL 1383516, at *3 (same); Molina 10 || v. Valenzuela, 2014 WL 4748308, at * 3 (C.D. Cal. Sept. 23, 2014) (same). 11 ORDER 12 IT IS THEREFORE ORDERED that the petition for a writ of habeas corpus 13 || is dismissed with prejudice. 14 15 || DATED: November 4, 2021 Anriapin Uh brgdt__ CHRISTINAA.SNYDER 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28