IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 2, 2009
WILLIE J. WOODS, PETITIONER,
D.K. SISTO, RESPONDENT.
FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a denial of parole occurring in 2005.
Respondent has filed a motion to dismiss. Respondent asserts that petitioner has already challenged the 2005 denial of parole through a federal habeas petition which, if true, would require that the current action be dismissed under 28 U.S.C. § 2244 and that petitioner obtain permission to proceed further from the Ninth Circuit Court of Appeals.
However, the court does not find that petitioner challenged his 2005 denial of parole in a previous federal habeas action. While petitioner did file a habeas petition in 2006, concerning denial of parole, that petition was dismissed as vague because, among other things, the court could not tell which particular parole denial petitioner was challenging. See Case No. CIV-S-06-2637 LKK KJM P (January 29, 2008 Findings and Recommendations, adopted in full March 25, 2008).
Accordingly, the court will recommend that respondent's motion to dismiss be denied and respondent be directed to file his answer.
In accordance with the above, IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss (#9) be denied.
2. Respondent be ordered to file their answer within sixty days.
3. Petitioner may file any traverse within thirty days of the filing of the answer. 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 twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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