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Javier Pastrana v. Kathleen Allison

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 15, 2011

JAVIER PASTRANA,
PETITIONER,
v.
KATHLEEN ALLISON, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (DOCS. 1, 25)

ORDER DISMISSING PETITIONER'S THIRD AND FOURTH CLAIMS CONCERNING PAROLE SUITABILITY WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM COGNIZABLE IN A PROCEEDING PURSUANT TO 28 U.S.C. § 2254(DOC. 1)

Petitioner is a state prisoner proceeding 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. On March 4, 2011, the Magistrate Judge filed findings and recommendations in which it was recommended that the petition for writ of habeas corpus be denied with respect to Petitioner's first, second, and fifth claims, which concerned alleged infringement of Petitioner's rights to due process of law and protection from ex post facto laws based on the BPH's consideration of the facts of the offense, an alleged violation of Petitioner's plea agreement, and the alleged involuntariness of Petitioner's plea to the commitment offense. It was further recommended that with respect to Petitioner's third and fourth claims concerning a finding of unsuitability for parole and the evidence supporting the findings, the petition be dismissed without leave to amend for failure to state a due process claim cognizable in a proceeding pursuant to 18 U.S.C. § 2254. Finally, it was recommended that the Court decline to issue a certificate of appealability.

ORDER DENYING THE PETITION WITH RESPECT TO PETITIONER'S FIRST, SECOND, AND FIFTH CLAIMS (DOC. 1) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING ENTRY OF JUDGMENT FOR RESPONDENT

The findings and recommendations were served on all parties on the same date and informed the parties that objections could be filed within thirty (30) days of service.

On May 31, 2011, Petitioner filed timely objections to the findings and recommendations. On June 13, 2011, Respondent filed a timely reply to Petitioner's objections. In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. The undersigned has carefully reviewed the entire file and has considered the objections and the reply to the objections; the undersigned has determined there is no need to modify the findings and recommendations based on the points raised in the objections and reply. The Court finds that the findings and recommendations are supported by the record and proper analysis.

Accordingly, it is ORDERED that:

1) The findings and recommendations filed on March 4, 2011, are ADOPTED IN FULL; and

2) The petition is DISMISSED without leave to amend for failure to state a cognizable due process claim insofar as Petitioner challenges in the third and fourth claims the BPH's finding of unsuitability for parole and the evidence supporting that finding; and

3) The petition is DENIED with respect to Petitioner's first, second, and fifth claims, which concerned alleged infringement of Petitioner's rights to due process of law and protection from ex post facto laws based on the BPH's consideration of the facts of the offense, an alleged violation of Petitioner's plea agreement, and the alleged involuntariness of Petitioner's plea to the commitment offense; and

4) The Court DECLINES to issue a certificate of appealability; and

5) The Clerk is DIRECTED to enter judgment for Respondent.

IT IS SO ORDERED.

20110615

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