Philip Graham Dugger v. Ralph Diaz

• Court: District Court, C.D. California
• Decided: February 3, 2021
• Docket: 8:20-cv-01744
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PHILIP GRAHAM DUGGER, ) Case No. SACV 20-1744-GW (JPR) ) 12 Petitioner, ) ) ORDER SUMMARILY DISMISSING 13 v. ) FEDERAL HABEAS PETITION ) 14 KATHLEEN ALLISON, CDCR ) Secretary,1 ) 15 ) Respondent. ) 16 17 On September 10, 2020, Petitioner filed a Petition for Writ 18 of Habeas Corpus by a Person in State Custody.2 The Petition’s 19 20 1 Petitioner names as Respondent Ralph Diaz (see Pet. at 1), 21 who was the California Department of Corrections and Rehabilitation’s Secretary when the Petition was filed. Diaz had 22 custody of Petitioner at his institution of confinement and therefore was properly sued. See Ortiz-Sandoval v. Gomez, 81 F.3d 23 891, 894-96 (9th Cir. 1996) (as amended). Because the CDCR’s 24 Secretary is now Kathleen Allison, she is substituted in as the proper Respondent. See Fed. R. Civ. P. 25(d); see also R. 2(a), 25 Rs. Governing § 2254 Cases in U.S. Dist. Cts. 26 2 That same day, Petitioner moved to disqualify the two assigned judges. On October 6, 2020, the Honorable Fernando M. 27 Olguin denied Petitioner’s disqualification motion. Thus, 28 Petitioner’s September 29, 2020 request for an update on the status of that motion is moot. 1 1 three claims stem from the state courts’ denials of his requests 2 for counsel during his parole proceedings. (See Pet. at 6-8.)3 3 He asks that counsel be appointed to represent him during his 4 parole proceedings and that an evidentiary hearing be ordered on 5 his claims. (Id. at 19.) 6 Under Rule 4 of the Rules Governing Section 2254 Cases in 7 the United States District Courts, a district court may dismiss a 8 habeas corpus petition before the respondent files an answer 9 “[i]f it plainly appears from the petition . . . that the 10 petitioner is not entitled to relief.” See also Clayton v. 11 Biter, 868 F.3d 840, 845 (9th Cir. 2017) (“District courts 12 adjudicating habeas petitions under § 2254 are instructed to 13 summarily dismiss claims that are clearly not cognizable.”). 14 And under Local Rule 72-3.2, a Magistrate Judge may “prepare a 15 proposed order for summary dismissal and submit it and a proposed 16 judgment to the District Judge” when “it plainly appears from the 17 face of the petition . . . that the petitioner is not entitled to 18 relief.” 19 The Petition fails to state a cognizable claim. Its three 20 claims all stem from the state courts’ denials of Petitioner’s 21 requests for counsel during his parole proceedings. (See Pet. at 22 6-8.) But the Supreme Court has never held that state prisoners 23 have a federal constitutional right to counsel at such hearings. 24 See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he 25 right to appointed counsel extends to the first appeal of right, 26 27 3 For nonconsecutively paginated documents, the Court uses the 28 pagination generated by its Case Management/Electronic Case Filing system. 2 1 and no further.”); Dorado v. Kerr, 454 F.2d 892, 897 (9th Cir. 2 1972) (“[D]ue process does not entitle California state prisoners 3 to counsel at [hearings] called to determine, administratively, 4 the length of imprisonment, and to grant or deny parole.”). 5 Because there is no federal constitutional right to counsel at 6 parole hearings, there can be no claim that the state courts’ 7 denials of his requests for counsel violated his federal 8 constitutional rights. See Coleman v. Thompson, 501 U.S. 722, 9 752-54 (1991) (holding that petitioner cannot claim 10 constitutionally ineffective assistance of counsel when no 11 underlying constitutional right to counsel exists); see also 12 Miller v. Keeney, 882 F.2d 1428, 1432 (9th Cir. 1989) (“If a 13 state is not constitutionally required to provide a lawyer, the 14 constitution cannot place any constraints on that lawyer’s 15 performance.”).4 16 Because it is clear that Petitioner is not entitled to 17 federal habeas relief, this action must be summarily dismissed. 18 See, e.g., Brooks v. Borders, No. CV 17-02535-RGK (DFM), 2018 WL 19 5098858, at *5 (C.D. Cal. Feb. 13, 2018) (recommending summary 20 dismissal of claim that petitioner was denied constitutionally 21 effective assistance of counsel at parole hearing), accepted by 22 2018 WL 5095159 (C.D. Cal. Oct. 17, 2018), certificate of 23 24 4 Petitioner also complains about the state courts’ application of its procedural rules in denying his claim for 25 counsel (see Pet. at 7-8 (claiming in ground two that state courts improperly construed his “writ of mandate” as habeas petition and 26 in ground three that superior court incorrectly stated “his county of commitment”)), but “[f]ederal habeas courts lack 27 jurisdiction . . . to review state court applications of state 28 procedural rules.” Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (as amended). 3 1 || appealability denied, No. 18-56534, 2019 WL 6117517 (9th Cir. 22, 2019). 3 parep: February 3, 2021 Arg Ay Ve — 5 GEORGE H. WU ©... 6 U.S. DISTRICT JUDGE

7 \| Presented by: 8 y 9 Wacan mite Mldl Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28