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Brodsky v. Curry

July 21, 2008

CLIFFORD BRODSKY, PETITIONER,
v.
BEN CURRY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Charles R. Breyer United States District Judge

ORDER TO SHOW CAUSE

Petitioner, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the California Board of Parole Hearings' ("BPH") November 6, 2006 decision to deny him parole.

BACKGROUND

In 1991, petitioner entered a plea of no contest to a charge of conspiracy to commit murder in Los Angeles County Superior Court and received a sentence of 15 years to life in state prison. Pursuant to the plea agreement, the prosecutor agreed not to oppose petitioner's release when he became eligible for parole, provided that petitioner remain free of disciplinary problems while incarcerated and cause no violence to befall any of the state's witnesses who might have testified against him.

Petitioner has been denied parole each time he has appeared before the BPH. On February 20, 2008, the Supreme Court of California denied review of his challenge to the BPH's November 6, 2006 decision to deny him parole and a subsequent hearing for one year.

DISCUSSION

A. Standard of Review

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 granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Id. § 2243.

B. Legal Claims

Petitioner seeks federal habeas corpus relief from the BPH's November 6, 2006 decision finding him not suitable for parole, and denying him a subsequent hearing for one year, on the ground that the decision does not comport with due process. Among other things, petitioner contends that the decision is not supported by some evidence in the record and that the prosecutor violated the terms of his plea agreement. Liberally construed, petitioner's claims appear colorable under § 2254 and merit an answer from respondent. See Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-29 (9th Cir. 2006) (finding that refusal to set parole date for prisoner with 15-to-life sentence implicated prisoner's liberty interest in release on parole which cannot be denied without adequate procedural due process protections). Biggs v. Terhune, 334 F.3d 910, 914-15 (9th 26 Cir. 2003) (same).

CONCLUSION

For the foregoing reasons and for good cause shown,

1. The clerk shall serve by certified mail a copy of this order and the petition and all attachments thereto on respondent and respondent's attorney, the Attorney General of the State of California. The ...


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