1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. HICKS, No. 2:22-CV-1910-DJC-DMC-P 12 Petitioner,

FINDINGS AND RECOMMENDATIONS

13 v. 14 BOARD OF PAROLE HEARINGS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2254. Pending before the Court is Respondent’s motion to 19 dismiss, ECF No. 19. Petitioner has filed an opposition, ECF No. 20. 20 21 I. BACKGROUND 22 Petitioner states in his petition that he was convicted in the Alameda County 23 Superior Court for rape, oral copulation, and kidnapping, and sentenced to a determine term of 35 24 years in prison. See ECF No. 1, pg. 1. Petitioner was later convicted in the San Bernardino 25 County Superior Court for inmate possession of a weapon as a third strike and sentenced to an 26 indeterminate sentence of 25 years to life, such sentence to commence in 2024. See id. at 2-3. 27 Petitioner states that, due to his age and the number of years already served in prison, he is 28 entitled to elder prisoner parole consideration before the Board of Parole Hearings. See id. at 9. 1 Petitioner states that he appeared for such a hearing in August 2021 and received a seven-year 2 denial. See id. Petitioner claims that he was denied the effective assistance of counsel at the 3 August 2021 parole hearing. See id. He also claims that he was denied procedural due process 4 by the Board of Parole Hearings. See id. Petitioner asks the Court to order the Board of Parole 5 Hearings to “withdraw its seven (7) year denial and to conduct additional consideration consistent 6 with California law in determining if parole should be granted.” Id. 7 8 II. DISCUSSION 9 In its motion to dismiss, Respondent argues: (1) Petitioner fails to state a federal 10 claim upon which habeas relief can be granted; and (2) Petitioner’s due process claim is 11 unexhausted. See ECF No. 19. 12 A. Failure to State a Federal Habeas Claims 13 Respondent contends Petitioner’s ineffective assistance of counsel claim 14 necessarily fails because Petitioner does not have a constitutional right to counsel at a parole 15 hearing. See id. at 3-4. Respondent also argues that Petitioner’s due process claim necessarily 16 fails because the claim amounts to a challenge to state law not cognizable on federal habeas 17 review. See id. at 4-5. Respondent further argues that the due process claim is not sufficiently 18 pleaded. See id. at 8-9. 19 1. Ineffective Assistance of Counsel 20 As Respondent correctly notes, in order to raise a claim of ineffective assistance of 21 counsel on federal habeas review, Petitioner must have a constitutional right to counsel at a parole 22 hearing. See Coleman v. Thompson, 501 U.S. 722, 752 (1991). Here, there is no constitutional 23 right to counsel at a parole hearing which has been recognized by the United States Supreme 24 Court. See Dorado v. Kerr, 454 F.2d 892, 896-97 (9th Cir. 1972); Nichols v. Pfeiffer, 2019 WL 25 40144426, at *4 (C.D. Cal. 2019). To the extent Petitioner has a state right to counsel at a parole 26 hearing, Petitioner’s claim sounds in state law and is not cognizable on federal habeas review. 27 See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam). 28 / / / 1 The Court agrees with Respondent that Petitioner’s ineffective assistance of 2 counsel claim must be dismissed. 3 2. Procedural Due Process 4 Reversing the Ninth Circuit’s decision in Hayward v. Marshall, 603 F.3d 546 (9th 5 Cir. 2010) (en banc), the United States Supreme Court observed:

6 Whatever liberty interest exists [in parole] is, of course, a state interest. There is no right under the Federal Constitution to be conditionally 7 released [on parole] before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. Id. at 7. When, 8 however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication – and federal courts will review the 9 application of those constitutionally required procedures. . . .

10 Swarthout v. Cooke, 562 U.S. 216 (2011) (per curiam) (citing Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 7 (1979)) (emphasis 11 in original). 12 The Court held:

13 . . . In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole 14 statute similar to California’s received adequate process when he was allowed an opportunity to be heard and was provided a statement of the 15 reasons why parole was denied. 442 U.S. at 16. “The Constitution,” we held, “does not require more.” Ibid. Cooke and Clay received at least this 16 amount of process: They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their 17 records in advance, and were notified as to the reasons why parole was denied. (citations omitted). That should have been the beginning and the 18 end of the federal habeas courts’ inquiry into whether Cook and Clay received due process. . . . 19 Id. 20 21 The Court added that “[n]o opinion of ours supports converting California’s ‘some 22 evidence’ rule into a substantive federal requirement” and “. . . it is no federal concern . . . 23 whether California’s ‘some evidence’ rule of judicial review (a procedure beyond what the 24 Constitution demands) was correctly applied” because “a ‘mere error of state law’ is not a denial 25 of due process.” Id. at 862-63 (citing Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)). Thus, in 26 cases challenging the denial of parole, the only issue subject to federal habeas review is whether 27 the inmate received the procedural due process protections of notice and an opportunity to be 28 heard. There is no other clearly established federal constitutional right in the context of parole. 1 According to Respondent, Petitioner’s due process claim is insufficient because he 2 may only challenge whether he was denied the procedural protections of notice and an 3 opportunity to be heard and, in this case, Petitioner does not so allege. See ECF No. 19, pgs. 4-5. 4 The Court agrees. Here, Petitioner does not state how his due process rights were violated in the 5 context of the medical parole hearing. Nor does Petitioner specifically claim that he was denied 6 notice or an opportunity to be heard. Thus, as currently pleaded, Petitioner’s due process claim 7 fails to state a claim upon which federal habeas relief can be granted. 8 Respondent also argues that, even if the due process claim was sufficiently 9 pleaded, Petitioner cannot proceed on the claim because it does not invoke this Court’s habeas 10 corpus jurisdiction. See id. at 5. This argument is also persuasive. For claims relating to parole, 11 federal habeas jurisdiction lies only if success on the claim “necessarily leads to a grant of 12 parole.” Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016). Here, Petitioner asks the 13 Court to order a new parole consideration hearing. See ECF No. 1, pg. 9. Thus, as Respondent 14 notes, Petitioner’s claim is not cognizable. 15 The Court agrees with Respondent that Petitioner’s due process claim must also be 16 dismissed. 17 B. Exhaustion 18 Respondent asserts that, even if Petitioner could state a cognizable due process 19 claim, the claim must be dismissed as unexhausted. See ECF No. 19, pgs. 6-7. 20 Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required 21 before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy, 22 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 23 336 F.3d 839 (9th Cir. 2003).1 The exhaustion doctrine is based on a policy of federal and state 24 comity, designed to give state courts the initial opportunity to correct alleged constitutional 25 deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. 26 “A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest 27 1 Claims may be denied on the merits notwithstanding lack of exhaustion. See 28 28 U.S.C. § 2254(b)(2). 1 state court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the 2 time the petitioner filed the habeas petition in federal court no state remedies are available to the 3 petitioner and the petitioner has not deliberately by-passed the state remedies.” Batchelor v. 4 Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). Exhaustion is not a jurisdictional 5 requirement and the court may raise the issue sua sponte. See Simmons v. Blodgett, 110 F.3d 39, 6 41 (9th Cir. 1997). 7 Regardless of whether the claim was raised on direct appeal or in a post-conviction 8 proceeding, the exhaustion doctrine requires that each claim be fairly presented to the state’s 9 highest court. See Castille v. Peoples, 489 U.S. 346 (1989). Although the exhaustion doctrine 10 requires only the presentation of each federal claim to the highest state court, the claims must be 11 presented in a posture that is acceptable under state procedural rules. See Sweet v. Cupp, 640 12 F.2d 233 (9th Cir. 1981). Thus, an appeal or petition for post-conviction relief that is denied by 13 the state courts on procedural grounds, where other state remedies are still available, does not 14 exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482, 488 (1979); Sweet, 15 640 F.2d at 237-89.2 16 In addition to presenting the claim to the state court in a procedurally acceptable 17 manner, exhaustion requires that the petitioner make the federal basis of the claim explicit to the 18 state court by including reference to a specific federal constitutional guarantee. See Gray v. 19 Netherland, 518 U.S. 152, 162-63 (1996); see also Shumway v. Payne, 223 F.3d 982, 998 (9th 20 Cir. 2000). It is not sufficient for the petitioner to argue that the federal nature of the claim is 21 self-evident. See Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 22 904 (9th Cir. 2001). Nor is exhaustion satisfied if the state court can only discover the issue by 23 reading a lower court opinion in the case. See Baldwin v. Reese, 541 U.S. 27, 32 (2004). 24 / / / 25 / / / 26 2 This situation of procedural deficiency is distinguishable from a case presented to 27 the state court using proper procedures but where relief on the merits is precluded for some procedural reason, such as untimeliness or failure to raise the claim on direct appeal. The former 28 represents an exhaustion problem; the latter represents a procedural default problem. 1 When faced with petitions containing both exhausted and unexhausted claim 2 (mixed petitions), the Ninth Circuit held in Ford v. Hubbard that the district court is required to 3 give two specific warnings to pro se petitioners: (1) the court could only consider a stay-and- 4 abeyance motion if the petitioner chose to proceed with his exhausted claims and dismiss the 5 unexhausted claims; and (2) federal claims could be time-barred upon return to federal court if he 6 opted to dismiss the entire petition to exhaust unexhausted claims. See 330 F.3d 1086, 1099 (9th 7 Cir. 2003). However, the Supreme Court held in Pliler v. Ford that the district court is not 8 required to give these particular warnings. See 542 U.S. 225, 234 (2004).3 Furthermore, the 9 district court is not required to sua sponte consider stay and abeyance in the absence of a request 10 from the petitioner, see Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir. 2007), or to inform the 11 petitioner that stay and abeyance may be available, see Brambles v. Duncan, 412 F.3d 1066, 12 1070-71 (9th Cir. 2005). Therefore, in the absence of a stay-and-abeyance motion, the district 13 court should dismiss mixed petitions and need not provide any specific warnings before doing so. 14 See Robbins, 481 F.3d at 1147 (citing Rose, 455 U.S. at 510 (holding that the petitioner has the 15 “choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas 16 petition to present only exhausted claims to the district court”)). 17 Citing state court filings, Respondent contends that Petitioner failed to fairly 18 present his due process claim to the state court because he did not provide the court with a 19 complete copy of the parole hearing transcript and, as a result, the state court could not determine 20 whether Petitioner’s claim had merit. See ECF No. 19 pg. 7. Essentially, this resulted in a 21 procedural default in state court. See id. The California Court of Appeal assumed that the claim 22 has been properly presented and denied it on the merits. See id. The California Supreme Court 23 also denied the claim on the merits. See id. 24 / / / 25 3 The Supreme Court did not address the propriety of Ninth Circuit’s three-step 26 stay-and-abeyance procedure which involves dismissal of unexhausted claims from the original petition, stay of the remaining claims pending exhaustion, and amendment of the original petition 27 to add newly exhausted claims that then relate back to the original petition. See Pliler, 542 U.S. at 230-31 (citing Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 986-88 (9th Cir. 28 1998)). 1 Given, as discussed above, the Court finds that the due process claim is not 2 || cognizable, it is not necessary to address the more complex issues of procedural default and 3 || exhaustion, and the Court does not do so here. Suffice it to say that Petitioner’s due process 4 || claim is not cognizable and should be dismissed for this reason alone as discussed above. 5 6 Il. CONCLUSION 7 Based on the foregoing, the undersigned recommends that Respondent’s motion to 8 || dismiss, ECF No. 19, be GRANTED and that all other pending motions, ECF Nos. 17 and 18, be 9 | DENIED as moot. 10 These findings and recommendations are submitted to the United States District 11 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 12 | after being served with these findings and recommendations, any party may file written objections 13 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 14 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 15 Yist, 951 F.2d 1153 (9th Cir. 1991). 16 17 | Dated: July 25, 2023 Co 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28