United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

RAMIRO MARQUEZ,

Petitioner,

 v.

BEN CURRY, WARDEN,

Respondent.

 /

No. C-08-4299 TEH (PR)

ORDER OF DISMISSAL

(Doc. #8)

Petitioner, a state prisoner incarcerated at the

Correctional Training Facility in Soledad, California, filed a pro

se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254,

claiming that (1) the California Board of Parole Hearings’ (“BPH”)

and the state courts’ use of the “some evidence” standard set forth

in Superintendent v. Hill, 472 U.S. 445, 457 (1985) to determine a

prisoner’s parole suitability is unconstitutional (Claim One); (2)

BPH’s April 6, 2006 decision to deny Petitioner parole was arbitrary

and capricious and did not satisfy the “some evidence” standard

(Claim Two); and (3) BPH is engaged in a conspiracy to deny parole

to as many prisoners “as is humanly possible” (Claim Three). Doc.

Case 3:08-cv-04299-TEH Document 9 Filed 02/08/10 Page 1 of 4
United States District Court

For the Northern District of California

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#1 at 6. 

After the Court issued an order to show cause why a writ

of habeas corpus should not be granted, Respondent filed, and the

Court granted, a Motion to Dismiss the Petition as “mixed” because

it contained both exhausted and unexhausted claims. Doc. ## 4 & 7;

See Rhines v. Weber, 544 U.S. 269, 271, 277 (2005) (“mixed” petition

is one that contains both exhausted and unexhausted claims); 28

U.S.C. § 2254(b) & (c). Rather than ordering an outright dismissal,

the Court granted Petitioner thirty days to serve and file a notice

in which he stated whether he elected to: (1) dismiss the

unexhausted claims (Claims Two and Three) and go forward in this

action with only the remaining exhausted claim (Claim One); or (2)

dismiss this action and return to state court to exhaust all of his

claims before returning to federal court to present all of his

claims in a new petition; or (3) move for a stay of these

proceedings while he exhausts his state court remedies for the

unexhausted claims. On January 26, 2010, Petitioner filed a Motion

to Dismiss his unexhausted claims (Claims Two and Three) and proceed

with his sole exhausted claim (Claim One). Doc. #8. 

I

This Court may entertain a petition for a writ of habeas

corpus “in behalf of a person in custody pursuant to the judgment of

a State court only on the ground that he is in custody in violation

of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). It shall “award the writ or issue an order

directing the respondent to show cause why the writ should not be

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For the Northern District of California

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granted, unless it appears from the application that the applicant

or person detained is not entitled thereto.” Id. § 2243. 

A habeas petition may be dismissed if it plainly appears

from the face of the petition and any exhibits attached thereto that

the petitioner is not entitled to relief. Hendricks v. Vasquez, 908

F.2d 490, 491 (9th Cir. 1990). Summary dismissal is appropriate if

the allegations in the petition are vague or conclusory, palpably

incredible, or patently frivolous or false. Id. 

II

In Claim One, Petitioner challenges the constitutionality

of BPH’s use of the “some evidence” standard set forth in

Superintendent v. Hill, 472 U.S. 445, 457 (1985) and argues that the

proper standard of review to be applied at parole suitability

hearings is that of a preponderance of evidence. 

The Ninth Circuit has made clear that the “some evidence”

standard identified by the Supreme Court in Hill is clearly

established federal law in the parole context. See Irons v. Carey,

505 F.3d 846, 850 (9th Cir. 2007); Sass v. Calif. Bd. of Prison

Terms, 461 F.3d 1123, 1128–29 (9th Cir. 2006). No Ninth Circuit

precedent, much less Supreme Court precedent, even suggests a more

stringent standard in the parole suitability context. Accord

Nikooseresht v. Curry, No. C 06-4357 MHP (PR), 2007 WL 2088558, at

*8 (N.D. Cal. July 18, 2007) (rejecting petitioner’s claim that the

state must prove his unsuitability for parole under “substantial

evidence” standard).

Because it plainly appears from the face of the Petition 

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United States District Court

For the Northern District of California

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that Petitioner is not entitled to relief on his claim that the

proper standard of review to be applied at parole suitability

hearings is that of a preponderance of evidence, the Petition is

subject to dismissal. See 28 U.S.C. § 2243. 

III

For the foregoing reasons, the Petition for Writ of Habeas

Corpus is DISMISSED. The Clerk is directed to terminate any pending

motions as moot and close the file. 

IT IS SO ORDERED.

DATED 2/8/10 

THELTON E. HENDERSON

United States District Judge

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