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Francisco J. Ramirez v. Ben Curry (Warden

August 3, 2011

FRANCISCO J. RAMIREZ,
PETITIONER,
v.
BEN CURRY (WARDEN),
RESPONDENT.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER DISMISSING PETITION

The pro se petitioner challenges only a parole denial. The petition is dismissed with prejudice as discussed below.

I. BACKGROUND AND PROCEEDINGS

In 1987 Petitioner was convicted of second-degree murder with use of a firearm and sentenced to seventeen years to life imprisonment. [Lodgment 1.] On April 7, 2005, Petitioner appeared, with counsel, at a subsequent parole consideration hearing before the Board of Prison Terms ("the Board").*fn1 [Lodgment 10.] The Board found petitioner not suitable for parole. [Id.]

Petitioner challenged this decision in two habeas petitions in the superior court [Lodgments 2, 4], which were denied in reasoned decisions on June 25, 2005, and March 3, 2006. [Lodgments 3, 5.] He next filed a habeas petition which the court of appeal denied on May 2, 2006, with citations to In re Dannenberg (2005) 34 Cal. 4th 1061, 1080; In re Rosenkrantz (2002) 29 Cal. 4th 616, 658; and In re Swain (1949) 34 Cal. 2d 300, 303-304. [Lodgments 6, 7.] He then filed a habeas petition with the California Supreme Court summarily denied on January 17, 2007. [Lodgments 8, 9.]

The present Petition for Writ of Habeas Corpus by a Person in State Custody (28 U.S.C. § 2254)("Pet.") was filed on April 4, 2007. [Docket no. 1.] On June 25, 2007, Respondent filed an answer and supporting memorandum and lodged state court documents. [Docket nos. 7, 9, 11.] On July 19, 2007, Petitioner filed a reply and a supporting memorandum. [Docket nos. 12, 13.]

On March 4, 2011, the court learned, from the inmate locator service of the California Department of Corrections and Rehabilitations that Petitioner was discharged from state prison on October 10, 2010, and released to "another jurisdiction, probably federal."*fn2

II. PETITIONER'S CLAIMS

The present petition asserts two grounds for federal habeas corpus relief:

1. The Board illegally used Penal Code section 3041(b) to find Petitioner unsuitable for parole. The decision was arbitrary and capricious in direct violation of Petitioner's state and federal due process rights.

2. The state courts have not addressed the issues raised and relief sought on appeal in violation of Petitioner's liberty interest and right to due process.

[Pet. at 5 ff.]

DISCUSSION

A federal court may review a habeas petition by a person in custody under a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. ยง 2254(a). Federal habeas relief is not available for state law errors. Swarthout v. Cook, U.S. , 131 S. Ct. 859, 861, L. Ed. 2d (2011)(per ...


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