1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT LEE JENKINS, Case No. 22-cv-04188-VC

8 Petitioner,

ORDER RECOGNIZING ONE CLAIM;

9 v. DISMISSING REMAINING CLAIMS

WITH LEAVE TO AMEND

10 L.A. MARTINEZ,

Respondent. 11

12 13 Robert Lee Jenkins, a California prisoner, filed a pro se petition for a writ of habeas corpus 14 under to 28 U.S.C. § 2254. Jenkins has paid the filing fee. See Dkt. No. 10. 15 BACKGROUND 16 In 1992, Jenkins was found guilty of torture, mayhem, assault with a deadly weapon, 17 corporal injury to a cohabitant, and possession of a firearm by a felon. Dkt. No. 1 at 11. He was 18 sentenced to two life terms and an additional eight months. Id. On July 28, 2021, the Board of 19 Parole Hearings denied parole for three years. Id. at 12. 20 DISCUSSION 21 I. Standard of Review 22 A district court may entertain a petition for writ of habeas corpus on “behalf of a person in 23 custody pursuant to the judgment of a State court only on the ground that he is in custody in 24 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 25 district court shall “award the writ or issue an order directing the respondent to show cause why 26 the writ should not be granted, unless it appears from the application that the applicant or person 27 detained is not entitled thereto.” 28 U.S.C. § 2243. If it appears plainly from the petition that the 1 responsive pleading. Summary dismissal is appropriate where the allegations in the petition are 2 vague or conclusory, palpably incredible, or patently frivolous or false. Hendricks v. Vasquez, 908 3 F.2d 490, 491 (9th Cir. 1990). The petition must also “state facts that point to a ‘real possibility of 4 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 5 689 (1st Cir. 1970)). 6 II. Legal Claims 7 Jenkins argues that: (1) he was erroneously deemed unsuitable for parole and is serving a 8 disproportionate term which amounts to cruel and unusual punishment; (2) the parole board failed 9 to conduct a proportionality analysis under California regulations; (3) the denial of parole was 10 arbitrary and capricious; (4) the parole board’s failure set a parole release date violates due 11 process; (5) his due process rights were violated during the parole hearing when the victim made 12 unsubstantiated claims; (6) the parole board failed to consider that Jenkins is an elderly offender as 13 required under California state law; (7) a psychological evaluation conducted in May of 2021 14 contained factual errors. Dkt. No. 1 at 5-7. 15 To the extent Jenkins argues that state law or state regulations were violated, he is not 16 entitled to federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“federal habeas 17 corpus relief does not lie for errors of state law.”) Nor is Jenkins entitled to relief for his 18 challenges to the denial of parole. In Swarthout v. Cooke, 562 U.S. 216 (2011) the Supreme Court 19 held “that in the context of parole eligibility decisions the due process right is procedural, and 20 entitles a prisoner to nothing more than a fair hearing and a statement of reasons for a parole 21 board’s decision[.]” Miller v. Oregon Bd. of Parole & Post Prison Supervision, 642 F.3d 711, 716 22 (9th Cir. 2011) (citing Cooke, 562 U.S. at 220-21). The Court explained that if a petitioner 23 received at least that much process, the federal court’s habeas review is at an end. Cooke, 562 U.S. 24 at 220. In light of Cooke, if “an inmate seeking parole receives an opportunity to be heard, a 25 notification of the reasons as to denial of parole, and access to their records in advance,” the 26 inmate “received due process.” Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011). 27 Here, Jenkins makes no allegation that he was denied any procedural protections in the 1 records in advance, was denied an opportunity to be heard, or was denied a statement for the 2 || reasons why parole was not granted. See Dkt. No. 1 at 56 -143 (transcript of parole suitability 3 || hearing). 4 Accordingly, except for Jenkins Eight Amendment claim related to his alleged 5 || disproportionate sentence, the remaining claims in the petition are dismissed. Dismissal is with 6 || leave to amend, if Jenkins believes in good faith that he can amend the claims to state a 7 violation of any procedural protections during the parole proceedings, i.e., the denial of an 8 opportunity to be heard, a notification of the reasons as to denial of parole, or access to his records 9 || in advance. 10 CONCLUSION 11 Based on the foregoing, the Court orders as follows: 12 1. Except for Jenkins Eighth Amendment claim, the remaining claims in the petition are 5 13 || dismissed with leave to amend. Jenkins is granted leave to file an amended petition to remedy the 14 || deficiencies noted above. 3 15 2. If Jenkins wishes to file an amended petition, he must do so within 28 days of this order 16 and must include the caption and case number used in this order. Failure to amend within the 3 17 specified time will result in the habeas petition proceeding on only Jenkin’s Eighth Amendment 18 || claim. 19 3. Jenkins must keep the Court informed of any change of address and must comply with 20 || the Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this action for 21 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 22 104 F.3d 769, 772 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 23 24 IT IS SO ORDERED. 25 Dated: December 5, 2022 26

LEE

28 VINCE CHHABRIA United States District Judge