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Ronald Edward Mcnabb v. the Petition To Warden Yates

December 16, 2010

RONALD EDWARD MCNABB, PETITIONER,
v.
THE PETITION TO WARDEN YATES, ET AL., RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DEEMING SUPPLEMENTAL BRIEF TO BE PART OF THE PETITION (DOCS. 1, 7)

ORDER CONSTRUING CHALLENGE THE DENIAL OF PAROLE ON AUGUST 1, 2006

ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTIONS FOR AN EVIDENTIARY HEARING (DOC. 10) AND

FOR SUMMARY JUDGMENT (DOC. 11) ORDER CONSTRUING PETITIONER'S PETITION FOR WRIT OF MANDATE (DOC. 13) TO BE A REQUEST FOR A DECISION ON THE MERITS ORDER DENYING PETITIONER'S REQUEST FOR A DECISION ON THE MERITS (DOC. 13)

ORDER REQUIRING RESPONDENT TO FILE A RESPONSE TO THE PETITION ORDER SETTING A BRIEFING SCHEDULE ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on August 30, 2010 (doc. 9). Pending before the Court is the petition, which was filed in the United States District Court for the Central District of California on June 22, 2010, and transferred to this Court on July 1, 2010.

I. Deeming the Supplemental Brief to Be Part of the Petition

Several weeks after the petition was transferred to this Court, Petitioner filed a supplemental brief on July 22, 2010. The brief concerns denial of Petitioner's parole, and specifically the absence of evidence for the conclusion that he remains a danger to society. It thus appears appropriate to consider the brief as a supplement to the petition.

Accordingly, the supplemental brief filed on July 22, 2010 (doc. 7) is DEEMED to be a part of, and supplement to, the petition.

II. Screening and Construing the Petition Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

Here, the petition refers to the denial of Petitioner's parole. Petitioner argues that the denial violated 1) his right to due process of law under the Fourteenth Amendment because of an absence of evidence to support the finding concerning the danger that Petitioner presented and the callous nature of his offense, 2) his right to be protected against ex post facto laws, and 3) his Eighth Amendment right to be free of cruel and unusual punishments.

Although the petition includes materials relating to numerous, past denials of parole (Pet. 10-15, Supp. [doc. 7] 6- 36), Petitioner complains of the continuing denial of parole. The Court understands that the gravamen of Petitioner's complaint is thus the most recent denial of his parole that occurred on August 1, 2006. (Pet. 16.) To construe the petition as challenging other, past denials would be inconsistent with the governing procedural principle that a habeas petition appropriately addresses only a single tribunal's decision. Rule 2(e) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). Thus, should Petitioner wish to challenge a different decision or decisions, he would have to file a separate petition for each parole decision challenged. Further, Petitioner does not purport to have exhausted state court remedies as to all the denials of parole that occurred in the past.

Therefore, the Court CONSTRUES the petition as challenging the decision of August 1, 2006, finding ...


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