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Deontay Scott v. State Board of Parole

July 26, 2011

DEONTAY SCOTT,
PETITIONER,
v.
STATE BOARD OF PAROLE, ET AL., RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 7) ORDER DISMISSING PETITION FOR ) WRIT OF HABEAS CORPUS FOR FAILURE TO EXHAUST STATE COURT REMEDIES (DOC. 1)

ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE

CASE

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 June 15, 2010 (doc. 4). Pending before the Court is the Court's order, issued on February 3, 2011, to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies.

I. Discharge of the Order to Show Cause Petitioner responded to the order to show cause on March 7, 2011.

Accordingly, the order to show cause will be discharged.

II. 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).

III. Background

Petitioner challenges on constitutional grounds the decision of the state parole authorities made in May 2010 to revoke Petitioner's parole for ten months.

In the petition, Petitioner does not indicate that he sought review of the decision in the state courts. (Pet. 1-7.)

In response to the order to show cause, Petitioner did not provide any information concerning exhaustion of state court remedies; rather, he argued regarding the merits of the decision to revoke his parole that is the subject of this petition.

Further, a search of the official website of the California Courts for any filing by Petitioner in the California ...


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