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Rose v. Sisto

February 11, 2010

STEVEN W. ROSE, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's motion to dismiss the petition on exhaustion grounds due to petitioner's alleged failure to fairly present any federal constitutional claim or claims to the California Supreme Court. Petitioner has filed an opposition to the motion.

I. The Pending Federal Petition for Writ of Habeas Corpus

In 1990, petitioner was sentenced to life imprisonment with the possibility of parole. (Petition (Doc. No 1) at 1/1.)*fn1 In his petition now before this court petitioner challenges the denial of parole at his sixth parole suitability hearing on February 5, 2008. (Id. at 1/16.) Although not entirely clear from his lengthy and somewhat convoluted petition, it appears petitioner is claiming that the February 5, 2008 hearing was not properly noticed and that he was deprived of his right to attend the hearing. (Id. at 1/25.) Petitioner also apparently claims that he was denied the effective assistance of counsel at his parole hearing. (Id. at 1/46.)

In his federal petition the petitioner provides a lengthy legal discourse concerning California's judicial, sentencing and parole suitability systems as well as petitioner's contentions that Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979) (holding that a prisoner has no federal constitutional right to parole) is not controlling, and that parole involves a liberty interest which is greater than what was found in the Greenholtz decision. (Id. at 1/28-45, 49-52) (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985) and In re Rosenkrzntz, 29 Cal. 4th 616, 677 (2002)). With respect to his ineffective assistance of counsel claim, petitioner comments on how the right to counsel relates to the "some evidence" standard and questions the standard of proof necessary to deny parole. (Id. at 1/46-47.)*fn2

Petitioner summarizes his ten grounds for federal habeas relief as follows:

Ground 1: Petitioner identifies the "historical significance of pre-liberty interests[,]" and critical California statutes and regulations, then applies "statutory construction and liberty interests identifications" to "outline[] prejudice per its failure." (Id. at 1/53.)

Ground 2: Petitioner identifies the regulations that have been violated. (Id.) Specifically, petitioner argues that 15 CCR § 2280 and 2281 are unconstitutional.*fn3 (Id. at 2/18.)

Ground 3: Petitioner concludes that administrative remedies are inadequate and that habeas relief is needed. (Id. at 1/53.) Petitioner argues that the "court must fix the appropriate term, and afford all credits applicable to Petitioner . . . and if applicable discharge parole at the earliest computation of time available under statute." (Id. at 2/22.)

Ground 4: Petitioner argues that California's parole scheme is distinguishable from systems discussed in U.S. Supreme Court cases. (Id. at 1/54.)

Ground 5: Petitioner contends that California's parole system provides a greater liberty interest than found in U.S. Supreme Court cases. (Id.)

Ground 6: Petitioner argues that the "some evidence" standard is insufficient.

(Id.)

Ground 7: Petitioner argues that greater due process protections are required because of a heightened liberty interest for parole. (Id.)

Ground 8: Petitioner argues that the procedural protections provided under California's parole system violate procedural ...


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