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Clark v. Small

November 18, 2009

JASON W. CLARK, PETITIONER,
v.
LARRY SMALL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION

I. Introduction

Jason Wayne Clark, a prisoner in state custody, filed a petition for writ of habeas corpus (the "Petition") in this Court on January 6, 2009. Pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) and (d), the Petition was referred to Magistrate Judge Cathy Ann Bencivengo for a report and recommendation.

Respondent answered the Petition on March 30, 2009, and Clark filed a traverse on April 27, 2009. Then, on May 8, 2009, Respondent moved to dismiss the Petition. Clark did not file an opposition, and on July 6, 2009 Judge Bencivengo issued her report and recommendation (the "R&R"), which recommended that the Petition be denied and Respondent's motion to dismiss be denied as moot. Clark did file a timely objection to the R&R.

II. Factual Background

The R&R does a thorough job of reciting the facts of this case, but some of them are worth repeating here. Clark stabbed a woman to death over a $40.00 debt, and on December 2, 1993 he pled guilty to second degree murder. As part of his plea agreement, the prosecution agreed to strike enhancements for Clark's use of a knife and his having a prior felony conviction. On February 3, 1994, Clark was sentenced to state prison for an indeterminate term of 15 years to life. He began to serve his sentence on February 14, 1994. His minimum eligible parole date was January 2, 2006.

In 2007, well over a decade after Clark was sentenced, he was eligible for parole for the first time. His initial parole hearing took place on September 5, 2007, and he was found unsuitable for parole for a period of four years. This decision became final on January 3, 2008, and it is this decision that Clark challenges in his Petition.

III. Legal Standards

A district court has jurisdiction to review a Magistrate Judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). In other words, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Because Clark is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). That said, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

IV. Discussion

The essence of Clark's Petition is that his due process rights were violated by the parole board because, in denying him parole, it considered certain factors that his plea agreement, for sentencing purposes, took off the table. For example, the parole board looked at Clark's criminal history, even though his plea agreement struck an enhancement based upon a prior felony conviction. Clark also believes, as a more general matter, that the parole board's decision to deny him parole for a period of 4 years was categorically unreasonable.

Although Clark filed an objection to the R&R, and although his individual objections ostensibly address the R&R head-on, Clark mostly reiterates in a conclusory fashion the same four grounds for relief alleged in his ...


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