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Bartholomew v. Sisto

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


July 20, 2010

KEVIN BARTHOLOMEW, PETITIONER,
v.
D. K. SISTO, RESPONDENT.

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a).

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts authorizes a judge to summarily dismiss a habeas petition "[i]f it plainly appears from the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Ruel 4, 28 U.S.C. foll. § 2254. The gravamen of petitioner's claim is that the California Board of Parole Hearings has failed to conduct timely parole hearings for petitioner in accordance with the requirements of state law and a state court consent decree. A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). It is unavailable for alleged error in the interpretation or application of state law. See id. at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987). Petitioner's claim is grounded in state law and is not cognizable in this federal habeas corpus proceeding.

In accordance with the above, IT IS HEREBY ORDERED that petitioner's request to proceed in forma pauperis is granted; and

IT IS HEREBY RECOMMENDED that this action be summarily dismissed. See Rule 4, 28 U.S.C. foll. § 2254.

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 fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. Petitioner is 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).

20100720

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