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Asael A. Alfaro v. James D. Hartley

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 19, 2011

ASAEL A. ALFARO, PETITIONER,
v.
JAMES D. HARTLEY, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. VIRGINIA A. Phillips United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation ("Objections"), and the remaining record, and has made a de novo determination.

Petitioner's Objections generally reiterate the arguments made in the Petition, and lack merit for the reasons set forth in the Report and Recommendation.

There is one issue, however, that warrants brief amplification here. Petitioner contends that the California Board of Parole Hearings ("Board") violated his due process rights by failing to provide Petitioner with sufficient reasons for the denial of parole. (Obj. at 1-2.) Petitioner is wrong. The Board advised Petitioner that he was unsuitable for parole because he posed an unreasonable risk of danger to society and a threat to public safety, and based its decision on: (1) the heinous, atrocious, cruel, and inexplicable nature of the commitment offense; (2) Petitioner's past and present mental state and attitude; (3) Petitioner's lack of insight; and (4) the District Attorney's opposition to Petitioner's release. (Pet. at 7-9, 27, 29-33.) The Constitution does not require more. See Swarthout v. Cooke, 131 S.Ct. 859, 861-863 (2011) (per curiam); see also Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 16 (1979).

Accordingly, IT IS ORDERED THAT:

1. The Report and Recommendation is approved and adopted;

2. Judgment be entered denying the Petition and dismissing this action with prejudice; and

3. The Clerk serve copies of this Order on the parties.

Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.

20110719

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