1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

BOBBY RAY AYERS,

11 Case No. 21-cv-05806 BLF (PR) Petitioner, 12 ORDER OF DISMISSAL; DENYING v. CERTIFICATE OF 13 APPEALABILITY; ADDRESSING

PENDING MOTION

14 ROBERT BURTON, 15 Respondent.

16 (Docket No. 11)

17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, challenging the denial of parole. Dkt. No. 1. The 20 Court dismissed the petition with leave to amend for Petitioner to state a violation of any 21 procedural protections during the parole proceedings. Dkt. No. 8 at 3. The Court subsequently granted Petitioner an extension of time to file an amended petition. Dkt. No. 22 10. Rather than file an amended petition as directed, Petitioner filed a “motion for 23 judgment,” asserting that he should not be forced to amend his petition and that the merits 24 of his claim have been clearly presented in the petition. Dkt. No. 11 at 2. He desires to 25 proceed with an appeal of this matter. Id. For the reasons discussed below, this matter 26 must be dismissed for failure to state a claim. 27 /// 1 DISCUSSION 2 According to the petition, Petitioner was convicted of second degree murder (Cal. 3 Penal Code § 187), and sentenced to 15-years-to-life in state prison. Dkt. No. 1 at 1-2. 4 Petitioner claims that his right to due process was violated by the recent denial of parole 5 after a hearing on May 13, 2020. Id. at 5; Dkt. No. 1-1 at 2. Specifically, Petitioner claims 6 that he sought discharge from the CDCR to the “DMH/Hospital as DMO-Commitment.” 7 Dkt. No. 1 at 5. In the state superior court, Petitioner claimed that he was improperly 8 denied a psychologist as an expert witness at his parole hearing. Id. at 11. Although 9 Petitioner did not recite that claim in the federal petition, the Court liberally construed the 10 action as including that claim. Dkt. No. 8 at 2. 11 In dismissing the petition with leave to amend, the Court provided the following 12 reasoning:

13 California prisoners have a constitutionally protected liberty interest in 14 release on parole and therefore cannot be denied a parole date (i.e., the parole board cannot decline to grant a parole date and cannot rescind an 15 already-granted parole date) without adequate procedural protections necessary to satisfy due process. See Irons v. Carey, 505 F.3d 846, 850 16 (9th Cir. 2007), overruled on other grounds by Hayward v. Marshall, 603 17 F.3d 546 (9th Cir. 2010) (en banc). In Swarthout v. Cooke, 562 U.S. 216, 220 (2011), the Supreme Court explained that, in the context of parole, its 18 earlier cases had “held that the procedures required are minimal.” The 19 Court earlier had “found that a prisoner subject to a parole statute similar to California’s received adequate process when he was allowed an opportunity 20 to be heard and was provided a statement of the reasons why parole was denied.” Id. at 220 (citing Greenholtz v. Inmates of Neb. Penal & Corr. 21 Complex, 442 U.S. 1, 16 (1979). As long as the petitioner received at least 22 that much process, the federal court’s habeas review is at an end. See Cooke, 562 U.S. at 220; see Miller v. Or. Bd. of Parole and Post-Prison 23 Supervision, 642 F.3d 711, 716 (9th Cir. 2011) (“The Supreme Court held 24 in Cooke that in the context of parole eligibility decisions the due process right is procedural, and entitles a prisoner to nothing more than a fair 25 hearing and a statement of reasons for a parole board's decision[.]”)

26 In light of Cooke, if “an inmate seeking parole receives an opportunity to be 27 heard, a notification of the reasons as to denial of parole, and access to their rule of judicial review. Pearson, 639 F.3d at 1191; Roberts v. Hartley, 640 1 F.3d 1042, 1047 (9th Cir. 2011) (quoting Pearson, 639 F.3d at 1191). 2 Finally, the Ninth Circuit recognized that Cooke clearly holds that the “responsibility for assuring that the constitutionally adequate procedures 3 governing California's parole system are properly applied rests with California courts.” Roberts, 640 F.3d at 1047 (quoting Cooke, 562 U.S. at 4 222). 5 Here, Petitioner makes no allegation that he was denied any procedural 6 protections in the recent denial of parole. Rather, he only alleges that he 7 was denied a psychologist to appear as an expert witness at the parole hearing, which fails to state a due process violation because an expert 8 witness is not one of the minimal procedural protections discussed in Swarthout. Cooke, 562 U.S. at 220. Accordingly, such a claim fails to 9 state a cognizable claim for federal habeas relief. 10 Dkt. No. 8 at 2-3. 11 In his motion for judgment, Petitioner asserts that his claim is based on the “abuse 12 of discretion” of the BPH in not executing a commitment order “as is commonly done for 13 their DSL/Determinate Sentencing Law non-lifers or ISL/Indeterminate Sentencing Law 14 lifers who are deemed a danger/risk upon release… and commit the prisoner as a patient to 15 DMH/Dept. Mental Health pursuant to Penal Codes 260, 2862, 2970, 2972.” Dkt. No. 11 16 at 2. Petitioner asserts that Swarthout “does not rule out every-single ‘Due Process’ issue 17 brought before the court via ‘case/controversy’ per U.S. Const.” Id. Petitioner also states 18 that he is seeking a direct appeal to proceed “on Circuit review of 1st Impression” on his 19 claim. Id. at 3. 20 There was no error in the Court’s decision to dismiss Petitioner’s due process claim 21 with leave to amend. As Petitioner states, he is challenging a discretionary decision by the 22 BPH to deny parole and declining to execute a commitment order placing Petitioner as a 23 patient with the Department of Mental Health. There is no constitutional right to civil 24 commitment rather than incarceration for a convicted prisoner, and Petitioner provides no 25 legal basis to support such a claim. 26 Because it is clear that Petitioner has no intention of filing an amended petition, the 27 Court has no choice but to dismiss this matter for failure to state a claim. 1 CONCLUSION 2 For the foregoing reasons, the petition is DISMISSED for failure to state a 3 |) cognizable claim for federal habeas relief. To the extent that Petitioner seeks a judgment 4 || in order to proceed with an appeal of this matter, his motion is GRANTED. Dkt. No. 11. 5 Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the Rules 6 || Governing Section 2254 Cases. Petitioner has not made “a substantial showing of the 7 || denial of a constitutional night.” 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated 8 || that “reasonable jurists would find the district court’s assessment of the constitutional 9 || claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may 10 || not appeal the denial of a Certificate of Appealability in this Court but may seek a 11 || certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate 12 ||} Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases. 5 13 Petitioner’s motion does not constitute a notice of appeal. He must file a separate S 14 || notice of appeal in accordance with Federal Rules of Appellate Procedure 3(a)(1) and 3 15 |} 4(a)(1). a 16 This order terminates Docket No. 11.

17 IT IS SO ORDERED. 18 || Dated: May 20, 2022 fhe Crus degen) 19 United States District fudge 20 21 22 23 24 Order of Dismissal; Denying COA 25 P:\PRO-SE\BLF\HC.21\05806Ayers_dism(ftsac) 26 27 28