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Anthony B. Tillman v. Board of Prison Terms

January 31, 2011

ANTHONY B. TILLMAN,
PETITIONER,
v.
BOARD OF PRISON TERMS, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION TO DISMISS THE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 14)

FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S MOTION TO GRANT THE WRIT OF HABEAS CORPUS AS MOOT

(DOC. 15)

FINDINGS AND RECOMMENDATION TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER

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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the first amended petition filed on December 1, 2010, pursuant to the Court's order of November 22, 2010, dismissing and granting leave to amend the initial petition. In dismissing the initial petition, the Court determined that it failed to state a cognizable claim because it lacked specificity and concerned conditions of confinement as distinct from matters affecting the legality or duration of the confinement. Further, Petitioner had failed to demonstrate exhaustion of state court remedies. (Doc. 10.)

I. Screening the First Amended 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).

Petitioner appears to state two separate claims. Petitioner alleges that his continued confinement violates the Eighth Amendment. The facts alleged in support of his argument are that "time matrix" has been reached, and the "continued use of an unrelated juvenile past insults the reasonableness of rehabilitation." (Pet. 4.)

Petitioner also claims that he was assigned a regular attorney instead of an "A.D.A. attorney." (Pet. 4.) Petitioner alleges that unspecified records are clear that Petitioner had learning and understanding difficulties, but the Board of Prison Terms knowingly assigned the wrong attorney to represent Petitioner's case. Petitioner does not identify the particular decision or proceeding involved or indicate the effect on him of any error concerning assignment of counsel. Petitioner seeks a setting aside of the previous hearing, the nature of which is not specified, and rescheduling of the hearing with an A.D.A. attorney. Petitioner also prays for $1,000,000 per year of incarceration in which his Eighth Amendment rights were violated. (Pet. 4.)

A. Lack of Specificity

With respect to the claim concerning Petitioner's continued confinement, the allegations concerning the reaching of a time matrix and use of an unspecified "juvenile past" are not sufficiently specific to demonstrate the basis for a claim under the Eighth Amendment or any other constitutional provision.

(Pet. 4.)

With respect to Petitioner's claim concerning assignment of the wrong attorney, Petitioner has failed to indicate what, if any, prejudice he suffered by the presence of an attorney who was not an "A.D.A" attorney. No inferences may intelligently be drawn because Petitioner has not identified the context of the representation; he has not specified a particular decision or a particular decision maker.

The notice pleading standard applicable in ordinary civil proceedings does not apply in habeas corpus cases; rather, Rules 2(c), 4, and 5(b) of the Rules Governing Habeas Corpus Cases in the United States District Courts require a more detailed statement of all grounds for relief and the facts supporting each ground; the petition is expected to state facts that point to a real possibility of constitutional error and show the relationship of the facts to the claim. Mayle v. Felix, 545 U.S. 644, 655 (2005). This is because the purpose of the rules is to assist the district court in determining whether the respondent should be ordered to show cause why the writ should not be granted and to permit the filing of an answer that satisfies the requirement that it address the allegations in the petition. Id. Conclusional allegations that are not unsupported by a statement of specific facts do not warrant habeas relief. Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995).

Here, Petitioner has failed to state specific facts that point to a real possibility of constitutional error. Petitioner's allegations are so lacking in factual support that the nature of any constitutional violation and the identity of the proceedings being challenged are uncertain. Petitioner's ...


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