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Steven Dean Parks v. Kathleen Allison

May 17, 2011

STEVEN DEAN PARKS,
PETITIONER,
v.
KATHLEEN ALLISON,
RESPONDENT.



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

ORDER DENYING AND DISREGARDING AS MOOT PETITIONER'S MOTION TO CONTINUE THE PETITION (DOC. 15)

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1)

FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S MOTION FOR DISMISSAL OR DEFAULT JUDGMENT (DOC. 20)

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 May 27, 2010 (doc. 7). Pending before the Court is the petition, which was filed on May 12, 2010. Respondent answered the petition on January 18, 2011, and Petitioner filed a traverse on January 28, 2011, with supplemental replies filed on February 3, 7, and 9, 2011.

I. Background

The petition challenges on due process grounds decisions upholding a finding that Petitioner was unsuitable for parole made by state parole authorities at the Corcoran State Prison on March 25, 2009. (Pet. 4, 53-60.) Amendment of the petition to name a proper respondent was effected on September 8, 2010. Petitioner attempted to stay these proceedings to permit exhaustion in the state courts of claims concerning his conviction of criminal offenses in Riverside, which Petitioner sought to have included in the present proceeding. On November 19, 2010, Petitioner's motion for stay and abeyance of these proceedings was denied because Petitioner's claims concerning his Riverside County robbery convictions, which were sustained in the Central District of California, were not properly brought in this district. 28 U.S.C. § 2241(d); Laue v. Nelson, 279 F.Supp. 265, 266 (C.D.Cal. 1968). Further, a claim challenging the Riverside County sentence would concern a different judgment, and thus would not properly be included in this petition. Rule 2(e) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules); Bianchi v. Blodgett, 925 F.2d 305, 308-11 (9th Cir. 1991); Williams v. Sisto, 2009 WL 3300038, *12 (E.D.Cal. Oct. 14, 2009).

Respondent filed an answer on January 18, 2011. In the answer, Respondent admitted that Petitioner exhausted his claim that the parole decision was not supported by some evidence. (Doc. 19, 2:9-12.)

II. Disregard and Denial of Petitioner's Motion to Continue the Proceedings

On November 24, 2010, Petitioner filed a motion to continue the petition, which he characterized as having been stayed or abated. Because the petition in this action was not stayed, the basis for the motion is unclear. Petitioner states in the application that all state court remedies have now been exhausted. (Doc. 15, 1.)

As Petitioner's motion concerns the claim or claims pending in this petition concerning the finding of unsuitability for parole, Petitioner's motion is DISREGARDED as moot, because the case is proceeding on those claims.

Insofar as Petitioner's motion concerns any claims involving a challenge to Petitioner's Riverside County convictions, Petitioner's motion is DENIED because the Court has previously declined to stay the present proceedings, and the Court has further ruled that those claims are not properly included in this proceeding.

III. Consideration of Dismissal of 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, Respondent answered the petition on January 18, 2011, and Petitioner filed a traverse and related documents in late January and early February 2011. After Respondent filed the answer, the United States Supreme Court decided Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011). Because Swarthout appears to govern the instant case, and as no motion to dismiss the petition has ...


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