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Leoncio Palma v. Katty Allison

May 9, 2011

LEONCIO PALMA,
PETITIONER,
v.
KATTY ALLISON, RESPONDENT.



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

ORDER ON RECONSIDERATION OF THE COURT'S ORDER DISMISSING THE ) PETITION WITH LEAVE TO AMEND ORDER DISMISSING THE PETITION WITH LEAVE TO FILE A FIRST (DOC. 7) AMENDED PETITION NO LATER THAN THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER

ORDER DISMISSING PETITIONER'S MOTION FOR AN EXTENSION OF TIME AS MOOT (DOC. 8) DEADLINE: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding in forma pauperis and pro se 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 petition, which was filed on November 15, 2010.

I. Background

In the petition, Petitioner alleged that he was an inmate of the California Substance Abuse Treatment Facility (CSATF) at Corcoran, California, serving a sentence of life with the possibility of parole imposed in 1990 for a conviction of attempted murder in the San Diego Superior Court. (Pet. 1.) Petitioner challenged a decision of the "board" (presumably California's Board of Parole Hearings) denying Petitioner's application for parole. (Pet. 4.) Petitioner claimed that the evidence was insufficient to support the decision that he continued to pose an unreasonable threat to others, there was no individualized consideration of the appropriate factors of parole suitability, and the board failed to articulate a rational nexus between the factors and the conclusion that Petitioner was presently dangerous to society if released. Petitioner alleged that this violated the state and federal constitutions, and that his continued incarceration was a violation of "due process." (Pet. 4, 5.)

However, because Petitioner did not specifically allege exhaustion of all claims and did not sufficiently identify the precise parole decision in issue, leave to file a first amended petition to state a more specific claim was granted by order dated January 4, 2011.

On February 9, 2011, Petitioner filed a request for a sixty-day extension of time within which to file a first amended petition (FAP).

II. Reconsideration of the Order Dismissing the Petition

After the Court's order dismissing the petition with leave to amend issued, the United States Supreme Court decided Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011).

Habeas corpus proceedings are characterized as civil in nature. See, Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 269 (1978). Rule 12 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) provides that the Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or the rules, may be applied to a habeas proceeding. The Advisory Committee's Notes caution that the civil rules apply only when it would be appropriate to do so and would not be inconsistent or inequitable in the overall framework of habeas corpus. Mayle v. Felix, 545 U.S. 644, 654-655 n.4 (2005).

A district court has the discretion to reconsider and modify intermediate, non-final dispositions at any time before final judgment is entered. Fed. R. Civ. P. 54(b); Holly D. v. California Institute of Technology, 339 F.3d 1158, 1180 (9th Cir. 2003). Further, a court has inherent power to control its docket and the disposition of its cases with economy of time and effort for both the court and the parties. Landis v. North American Co., 299 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Because the Swarthout case appears to govern the types of claims that Petitioner alleged in the initial petition, the Court exercises its discretion to reconsider the order dismissing the initial petition in order to determine whether there are additional grounds for dismissing the petition.

The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures with respect to the liberty interest. Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011).

However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979). *fn1

Swarthout v. Cooke, 131 S.Ct. 859, 862. In Swarthout, the Court rejected inmates' claims that they were denied a liberty interest because there was an absence of "some evidence" to ...


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