(HC) Duran v. Newsom

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL DURAN, Case No. 2:23-cv-01910-JDP (HC) 12 Petitioner, ORDER 13 v. GAVIN NEWSOM, 15 Respondent.

17 Petitioner, a state prisoner represented by counsel, seeks a writ of habeas corpus under 28 18 U.S.C. § 2254. He argues that no evidence supports the state’s denial of his parole. After reviewing his initial petition, I find that it fails to state a cognizable claim. I will give him leave to amend before recommending the petition be dismissed, however.

21 The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).

26 Petitioner argues that no evidence supports the state’s denial of his parole. ECF No. 1 at 5-7. In so doing, he cites the Ninth Circuit’s decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), for the proposition that “some evidence” must support the state’s denial of | parole. ECF No. 1 at 7. That case was overruled by the Supreme Court in Swarthout v. Cook, | 562 U.S. 216 (2011). There, the Supreme Court held that, in the context of parole, the | constitution requires only that the prisoner denied parole be afforded an opportunity to be heard | anda statement of reasons as to why parole was denied. /d. at 220. Petitioner does not appear to | argue that he did not receive the minimum procedure that he was due.

6 I will give petitioner an opportunity to amend and explain why this action should still | proceed.

8 It is ORDERED that within thirty days of this order’s entry, petitioner may file an | amended habeas petition. If he does not, I will recommend this action be dismissed.

Wl IT IS SO ORDERED.

12 ( ie — Dated: _ November 30, 2023 Q_—_—.

13 JEREMY D. PETERSON 4 UNITED STATES MAGISTRATE JUDGE