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SUMMERS v. WOODFORD

November 16, 2005.

GEORGE EDWARD SUMMERS, Plaintiff,
v.
JEANNE S. WOODFORD, et al., Defendant.



The opinion of the court was delivered by: WILLIAM HAYES, District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiff George Edward Summers, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Plaintiff challenges former Governor Davis' decision to reverse a decision by the California Board of Prison Terms ("BPT") to grant Plaintiff parole. On July 28, 2005, the Honorable William McCurine, Jr., United States Magistrate Judge, issued a Report and Recommendation ("R&R") detailing the reasons why the petition should be denied. The parties were permitted to file Objections to the R&R no later than September 30, 2005.*fn1 On September 22, 2005, Plaintiff filed Objections to the R&R. BACKGROUND

On May 7, 1982, Plaintiff was found guilty of first degree murder with the use of a firearm under California Penal Code sections 969(d) and 12022.5. The trial court reduced the offense to second degree murder pursuant to Penal Code § 1181 and sentenced Plaintiff to fifteen years to life plus two years for use of the firearm, for a total term of seventeen years to life. On appeal, the court affirmed the conviction. People v. Summers, 147 Cal. App. 3d 180 (1983).

  On December 2, 1992, Plaintiff became eligible for parole consideration and began receiving hearings before the BPT. On November 19, 2002, the BPT found the Plaintiff suitable for parole. On April 18, 2003, former Governor Davis exercised his constitutional authority to independently review Plaintiff's case and decided to deny parole. The Governor reversed the BPT's decision to grant parole on the bases of Plaintiff's lengthy history of drug abuse, the insufficiency of Plaintiff's parole plans in light of his history of drug abuse, and Plaintiff's failure to acknowledge full responsibility for the crime. R&R, p. 3.

  On September 2, 2003, Plaintiff challenged the Governor's decision in a petition for writ of habeas corpus in the San Diego Superior Court claiming that his due process rights were violated. The court denied Plaintiff's petition in a reasoned opinion.

  On December 1, 2003, Plaintiff filed a petition in the California Court of Appeal, Fourth Appellate District, seeking a review of the appellate court's decision. The court of appeal denied the petition without a written opinion. Plaintiff then filed a petition for review with the Supreme Court of California, which also denied to review the petition without a written opinion.

  On April 12, 2004, Plaintiff filed a petition in federal court for writ of habeas corpus. R&R, p. 2. The Plaintiff now Objects to the recommendations set forth in the R&R.

  STANDARD OF REVIEW

  The duties of the district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

  When no objections are filed, the district court may assume the correctness of the Magistrate Judge's factual findings and decide the motion on the applicable law. See Campbell v. United States Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989).

  DISCUSSION

  On July 28, 2005, Magistrate Judge McCurine issued a R&R regarding Plaintiff's petition for writ of habeas corpus. R&R, p. 1. Specifically, the R&R recommended denying Plaintiff's due process claim and his ex post facto claim. Id. at 13. The Magistrate reasoned that Plaintiff has a sufficient liberty interest in his parole to implicate due process rights, but that adequate procedural protections were provided to comply with due process. Id. at 8, 12. The R&R states the Plaintiff could not prove that each of the factors the Governor relied on were not supported by "some evidence." Id. The R&R also recommends denying habeas relief because Plaintiff could not establish that the state court's denial of his claim was contrary to, or an unreasonable application of federal ex post facto law. Id. at 13.

  Plaintiff submits five Objections to the Magistrate's R&R. See Pltf's Objections. Plaintiff first objects to R&R's application of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") in concluding that habeas relief be denied. Pltf's Objections, p. 5. Plaintiff then argues the Magistrate erred in recommending that due process was not violated, alleging the factors the Governor relied on were not supported by "some evidence." Specifically, Plaintiff argues that the American with Disabilities Act ("ADA") protects prisoners from being discriminated against based on prior substance abuse and that the Governor should not have considered that element in his decision to deny parole. Pltf's Objections, p. 8. Plaintiff also argues that the Governor erred in basing his decision to deny parole on a continuing failure by Plaintiff to accept full responsibility because it is not supported by the record. Finally, ...


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