1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DURAN, Case No. 2:23-cv-01910-JDP (HC) 12 Petitioner, ORDER 13 v. DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT JUDGE TO THIS 14 GAVIN NEWSOM, et al., ACTION 15 Respondents. FINDINGS AND RECOMMENDATIONS 16 THAT THE AMENDED PETITION BE DISMISSED FOR FAILURE TO STATE A 17 COGNIZABLE CLAIM 18 ECF No. 7 19 OBJECTIONS DUE IN FOURTEEN DAYS 20 21 Petitioner, a state prisoner represented by counsel, brings this action under section 2254 22 and alleges that the state’s denial of parole was erroneous because it was not supported by “some 23 evidence.” ECF No. 7 at 3-4. I previously explained that, in light of the Supreme Court’s 24 decision in Swarthout v. Cook,

(2011), the only requirements for parole in the 25 federal habeas context are that the prisoner be afforded an opportunity to be heard and a statement 26 of reasons for why parole was denied. Id. at 220. I gave petitioner leave to amend and the new 27 petition offers only the same argument: that the state failed to produce “some evidence” to justify 28 1 | the denial. ECF No. 7 at 4. The Supreme Court was explicit, stating “it is no federal concern 2 | here whether California's ‘some evidence’ rule of judicial review (a procedure beyond what the 3 | Constitution demands) was correctly applied.” Swarthout, 562 U.S. at 221. Accordingly, I now 4 | recommend this action be dismissed for failure to state a cognizable claim. 5 It is hereby ORDERED that the Clerk of Court shall assign a district judge to this action. 6 Further, it is RECOMMENDED that the amended petition, ECF No. 7, be DISMISSED 7 | for failure to state a cognizable claim and the Clerk of Court be directed to close this matter. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen days of 10 | service of these findings and recommendations, any party may file written objections with the 11 | court and serve a copy on all parties. Any such document should be captioned “Objections to 12 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 13 | within fourteen days of service of the objections. The parties are advised that failure to file 14 | objections within the specified time may waive the right to appeal the District Court’s order. See 15 | Turner v. Duncan,

(9th Cir. 1998); Martinez v. Yist,

(9th Cir. 16 1991). 17 18 IT IS SO ORDERED. 19 ( 1 Sty — Dated: _ October 3, 2024 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE

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