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Alejandro Alve v. L.E. Scribner

March 15, 2011

ALEJANDRO ALVE, PETITIONER,
v.
L.E. SCRIBNER, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER:

(1) ADOPTING REPORT AND RECOMMENDATION [DOC. 25], (2) OVERRULING PETITIONER'S OBJECTIONS [DOC. 26], (3) DENYING PETITION WITH PREJUDICE [DOC. 1], AND(4) DENYING A CERTIFICATE OF APPEALABILITY

Petitioner Alejandro Alve, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Petition"). On December 6, 2010, United States Magistrate Judge William V. Gallo issued a Report and Recommendation ("Report") recommending that this Court deny the Petition with prejudice. Petitioner filed an objection to the Report. Respondent did not file a reply.

The Court decides the matters on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons outlined below, the Court ADOPTS the Report in its entirety (Doc. 25), OVERRULES Petitioner's objections (Doc. 26), DENIES the Petition WITH PREJUDICE (Doc. 1), and DENIES a certificate of appealability.

I. BACKGROUND*fn1

In 1976, Petitioner was convicted by a jury of two counts of first-degree murder and assault. (Report 2:3--4 [Doc. 25].) The first murder victim was found naked with a knife protruding from his abdomen; he had also been shot twice in the head, stabbed in the neck, and had his genitals cut five times. (Id. at 4:25--5:2.) The second murder victim had been stabbed in the chest with a butcher knife. (Id. at 5:6--8.) After an appeal, Petitioner was eventually given an indeterminate sentence of seven years to life imprisonment with the possibility of parole. (Id. at 2:6--11.)

On November 16, 2005, the Board of Parole Hearings ("Board") denied Petitioner parole. (Report 4:5--10.) The Board reasoned that Petitioner would pose an "unreasonable risk and danger to society or threat to public safety" if paroled. (Id.) The Board further based its decision on the cruel and callous nature of the offenses and Petitioner's prior adult criminal history. (Id.) It further noted that Petitioner continued to receive disciplinary reports, including one in 2003. (Id.) Also, a psychological report submitted by John R. Bellinger, Ph. D., indicated that Petitioner's potential for violence might be at an above-average level. (Id.; see also Pet., Ex. 11, at 3--4 [Doc. 1].)

Thereafter, Petitioner filed a habeas petition in San Diego County Superior Court challenging the Board's decision. He claimed that the Board's decision violated his due-process rights because the decision was not supported by "some evidence." The superior court denied the petition finding that "some evidence" supported the Board's decision.

Petitioner then filed a habeas petition in the California Court of Appeal raising the same claims. The Court of Appeal, using the then existing federal and state law, found that the nature of Petitioner's offenses amounted to "some evidence" that the crimes were cruel and callous. (Report 5:9--11.) Further, the Court noted that the Board considered a psychological report of Petitioner that stated that Petitioner's future potential for violence might be at an above-average level if he encountered difficulties in the transition from inmate to parolee. (Id. at 5:12--15.) Therefore, "some evidence" supported the Board's decision. (Id. at 5:15--16.) Accordingly, the Court of Appeal denied the petition.

Following the Court of Appeal decision, Petitioner filed a petition for review in the California Supreme Court. It was summarily denied.

On January 25, 2008, Petitioner filed the instant Petition. He alleges that the Board violated his Fourteenth Amendment due-process rights in denying him parole in November 2005. (Petition 16 [Doc. 1].)

On December 6, 2010, Magistrate Judge Gallo issued the Report that found that Dr. Bellinger's conclusions, noted in his mental-health evaluation of Petitioner, provided the Board and the Court of Appeal with "some evidence" of Petitioner's current dangerousness. (Report 18:6--9.) Accordingly, Magistrate Judge Gallo recommends that this Court deny the Petition with prejudice. (Id. at 18:22--24.) Thereafter, Petitioner filed an objection to the Report, and Respondent did not file a reply.

II. LEGAL STANDARD

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (holding that 28 U.S.C. § 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise") (emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) ("Of course, de novo review of a R & R is only required when an objection is made to the R & R.") (emphasis added) (citing RenyaTapia, 328 F.3d at 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) ...


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