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John D. Svelund v. Arnold Schwarzenegger

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 24, 2012

JOHN D. SVELUND, PETITIONER,
v.
ARNOLD SCHWARZENEGGER,
RESPONDENT.

ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Previously, the court determined that the petition failed to state a claim for relief. By order, the petition was dismissed with leave to file an amended petition. Plaintiff has now filed an amended petition.

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court ...." Rule 4 of the Rules Governing Section 2254 Cases. 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, 915 F.2d at 420. Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 F.2d at 491.

Here, as in the initial petition, petitioner contends that after he refused to submit to a psychological examination in preparation for a parole hearing before the Board of Parole Hearings ("the Board"), his medical records were released to a psychologist who generated a report for the Board. Petitioner contends this violated his right to refuse medical care, as well as state and federal law. For the reasons set forth in this court's April 20, 2011 order, the court again finds that petitioner's claim lacks merit. Furthermore, even if the court were to order the expungement of the psychological evaluation from petitioner's file, that will not necessarily shorten the length of his confinement. As other courts have concluded, parole can properly be denied on many different grounds based upon the entire record available to the Board. Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997). Because petitioner has not shown that the challenged psychological report will likely accelerate his release on parole, the court lacks habeas jurisdiction over this action.

Accordingly, IT IS ORDERED that the Clerk of the Court assign a district judge to this case; and

IT IS HEREBY RECOMMENDED that the petition be dismissed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20120224

© 1992-2012 VersusLaw Inc.



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