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Earl Henry Down v. J. Haviland

May 3, 2011

EARL HENRY DOWN,
PETITIONER,
v.
J. HAVILAND, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 14, 2011, the magistrate judge issued findings and recommendations on respondent's motion to dismiss, recommending that the motion be granted in part, denied in part, and that one of petitioner's claims be dismissed by the court sua sponte as foreclosed by a recent U.S. Supreme Court decision. ECF No. 16. This court adopted those findings and recommendations on March 29, 2011. ECF No. 19.

Petitioner now seeks clarification of the court's findings and recommendations and order. ECF No. 20. He states that he is unsure whether his petition has been dismissed and has accordingly filed a notice of appeal and a motion for certificate of appealability, to be effective only if the case has been dismissed.

ECF Nos. 21, 22; see ECF No. 20 at 3 ("[I]f the instant writ petition is not being denied/dismissed, the above Notice of Appeal & Certificate of Appealability can be disregarded at this time").

The court will grant petitioner's motion for clarification and provides the following clarification:

For ease of reference, the court denoted plaintiff's claims as numbered (1) through (8):

(1) California's Proposition 9, which increased the periods between parole hearings, is an unconstitutional ex post facto law (Pet. at 4);

(2) The California Board of Parole Hearings ("BPH") deprived petitioner of due process when it prevented him from cross-examining his "accusers" and objecting to "BPH false testimony" (id.);

(3) The BPH deprived petitioner of equal protection (id.);

(4) Increased victim participation in petitioner's parole consideration hearing pursuant to Proposition 9 violated "the Privacy Act" (id.);

(5) The BPH's exercise of sentencing functions violates "the Separation of Powers Doctrine" (id. at 4);

(6) The BPH violated petitioner's Eighth Amendment right to be free from cruel and unusual punishment (id. at 8);

(7) The BPH violated Blakely, Apprendi, and Cunningham by accusing petitioner of crimes he did not commit (id. at 10);

(8) The BPH denied petitioner parole despite the absence of "some evidence" of his current ...


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