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Aguero v. State of California Dep't of Corrections

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 27, 2009

DUANE AGUERO, PETITIONER,
v.
STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's [amended] petition for a writ of habeas corpus (Doc. 1).

Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary dismissal of a habeas petition "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." In the instant case, it is plain that petitioner is not entitled to federal habeas relief. Petitioner, who was housed in a county jail at the time the petition was filed, claims that he was "apt only to receive two thirds time" instead of half time credits because he was not at a CDCR facility. This claim is clearly speculative given that petitioner does not state that he ever actually received fewer good time credits than he should have. Further, the docket reflects that petitioner is now housed in a CDCR facility and, for this reason, the factual basis for petitioner's claim has become moot. Finally, there is no indication that petitioner exhausted his claim by fairly presenting it to the state's highest court.

Based on the foregoing, the undersigned recommends that petitioner's petition for a writ of habeas corpus (Doc. 1) be summarily dismissed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20090527

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