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Paul Albert Guardado v. George A. Neotti

January 17, 2012

PAUL ALBERT GUARDADO,
PETITIONER,
v.
GEORGE A. NEOTTI, RESPONDENT.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER (1) ADOPTING REPORT AND RECOMMENDATION AND (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Paul Albert Guardado ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (the "Petition"), challenging the Board of Parole Hearings' September 25, 2008 decision denying him parole. On November 11, 2011, United States Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("Report"), recommending that this Court deny the Petition. Thereafter, on December 6, 2011, Petitioner filed timely objections to the Report.

The Court decides the matters on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). As explained more fully below, the Court ADOPTS the Report (Doc. 28), DISMISSES the Petition (Doc. 1) WITH PREJUDICE, and DENIES a certificate of appealability.

I. PROCEDURAL BACKGROUND

The following factual background is taken from the Report, to which no objections were made. After the reversal of his 1989 conviction for being involved in a shooting death in 1979, Petitioner Guardado was retried and convicted of second degree murder in 1995. (Lodgment No. 3, In re Guardado, M-12340XA, slip op. at 1 (Cal. Super. Ct. 2009).) Guardado was sentenced to fifteen years to life. (Pet. [Doc. 1] 1-2.) According to Guardado, he first became eligible for parole on July 3, 2000. (Id. at 2.) He had his seventh parole hearing on Septeber 25, 2008, which he attended with his attorney. (Lodgment No. 13, Exhibit A, In re Life Term Parole Consideration Hr'g of Paul Guardado, CDC No. E-36459, Hr'g Tr. 3 (Sept. 25, 2008) (exhibits to Orange County Superior Court habeas petition).) During the hearing, members of the Board of Parole Hearings (the "Board") discussed case factors and Petitioner's parole plans. The Board asked Guardado questions, to which he responded, and he was also allowed to make a closing statement. (See id. at 112-15.)

At the conclusion of the hearing, the Board found that Guardado was unsuitable for parole. (Id. at 116.) The Board indicated that the nature of the commitment offense weighed heavily on this decision, as well as Guardado's minor institutional behavioral issues, his failure to include plans to attend Alcoholics Anonymous upon parole, and his need to develop more insight into the offense. (Id. at 116-24.)

On December 28, 2009, Guardado filed this federal Petition challenging the Board's September 25, 2008 finding of unsuitability for parole. (Pet. 1.) Afterwards, the United States Supreme Court decided Swarthout v. Cooke, which dealt with federal habeas corpus relief for the denial of parole eligibility. On August 22, 2011, Guardado filed a supplemental brief addressing the application of Cooke to the instant matter.

On November 4, 2011, Magistrate Judge Brooks issued the Report recommending that the Court deny the Petition, and set the deadline for filing objections and replies. (Report [Doc. 28] 17-19. ) On December 12, 2011, Guardado filed objections to the Report. (Opp'n [Doc. 32]. ) Respondent did not file a reply.

II. DISCUSSION

A. Legal Standard

The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). When no objections are filed, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. See Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

B. Scope of Review

The Petition is governed by Title 28, United States Code, § 2254(a), as amended by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Section 2254(a) sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in ...


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