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Lawrence Remsen v. J. Holland

May 24, 2012

LAWRENCE REMSEN,
PETITIONER,
v.
J. HOLLAND, (A) WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DENYING WITHOUT PREJUDICE THE MOTION TO CHANGE THE NAME OF RESPONDENT (Doc. 4) ORDER TO PETITIONER TO SHOW CAUSE IN THIRTY (30) DAYS WHY THE PETITION SHOULD NOT BE DISMISSED FOR PETITIONER'S FAILURE TO EXHAUST STATE REMEDIES (Doc. 1)

Petitioner is a state prisoner proceeding pro se 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 May 17, 2012 (doc. 4). Pending before the Court is the petition, which was filed on May 7, 2012.

I. Motion to Change the Name of the Respondent Petitioner alleged that his place of confinement is the California Correctional Institution at Tehachapi, Caifornia (CCI). (Pet. 1.) Petitioner named as Respondent J. Holland, Acting Warden. In a motion filed on May 17, 2012, Petitioner states that Respondent Holland's first initial is "K" and not "J," and thus he requests the Respondent's name be corrected.

A petition for writ of habeas corpus brought on behalf of one in custody under a state court judgment shall allege the name of the person who has custody over the applicant as respondent.

28 U.S.C. § 2242; Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts. A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

Here, reference to the official website of the California Department of Corrections and Rehabilitation (CDCR)*fn1 reflects that the acting warden at CCI is Michael Stainer, not a K. Holland or J. Holland.

Accordingly, Petitioner's request to change the name of Respondent will be denied without prejudice. The proper name of the Respondent as well as other matters will be the subject of additional screening once the status of Petitioner's exhaustion of his claims is ascertained.

II. Screening 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 at 491.

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).

A petition for habeas corpus should not be dism issed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

Here, Petitioner alleges that he is an inmate of the CCI serving a sentence of fifteen years to life plus five years imposed in 1983 in the Los Angeles County Superior Court for second degree murder and multiple counts of forgery and theft in violation of Cal. Pen. Code §§ 187, 470, and 487. (Pet. 1, 8.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on March 19, 2008, finding Petitioner unsuitable for parole.

Although Petitioner lists only four grounds in the form portion of the petition (doc. 1, 5-6), a review of the entirety of the petition shows that Petitioner appears to raise additional claims or sub-claims. The claims that appear to be raised in the petition are as follows: 1) the finding that Petitioner was unsuitable for parole because of an unreasonable risk to the public safety was a violation of Petitioner's rights to substantive due process and equal protection guaranteed by the Fourteenth Amendment because it was unsupported by the evidence;

2) Petitioner was denied a fair and impartial hearing because the BPH failed to recognize its statutory limitations and was not impartial; 3) the failure to release Petitioner on parole violated Petitioner's right to due process and equal protection because when sentenced he was told that he could not serve more than fifteen years; 4) the determination of the length of Petitioner's sentence by the BPH exceeds the BPH's authority because it is a legislative function, and it results in an absence of uniformity of sentence and a violation of Petitioner's right under state law to have his sentence set on the basis of proportionality of the offense and earned credits; 5) the failure to provide annual parole hearings as was the case when Petitioner was convicted is an incorrect interpretation or application of state law; 6) changing the parole rules after Petitioner's conviction (different numbers of commissioners to consider parole, unspecified differences in standards, additional review by the governor, greater periods between parole hearings) violated the prohibition against ex post facto laws under the Constitution and the state constitution; 7) the application of Cal. Pen. Code § 3041 to Petitioner violates Petitioner's right to substantive due process and equal protection because Petitioner is not serving a life sentence under state law; 8) Petitioner's right of contract and right to a reduction of his sentence were denied when his agreement with the state pursuant to Cal. Pen. Code § 2931 was violated; 9) under the state laws enacted in 1977, the BPH was without the authority to enact or apply to Petitioner rules and regulations concerning release on parole other than Petitioner's earned good time credits; 10) Petitioner's First Amendment rights were ...


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