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Timothy Johnson v. James Hartley

June 6, 2012

TIMOTHY JOHNSON,
PETITIONER,
v.
JAMES HARTLEY, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING THE PETITION AS SUCCESSIVE PURSUANT TO 28 U.S.C. § 2244(b) (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 May 31, 2012 (doc. 5). Pending before the Court is the petition, which was filed on May 14, 2012.

I. 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.

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).

II. Background

Petitioner is an inmate of the Avenal State Prison (ASP) serving a sentence of seven years to life imposed in the Sacramento County Superior Court for Petitioner's 1991 conviction of aiding and abetting an attempted murder. (Pet. 1.)

Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made on April 10, 2010, finding Petitioner unsuitable for parole. Petitioner argues that the BPH's reliance on a psychological evaluation as one of the multiple factors for a finding of unsuitability violated Petitioner's constitutional rights.

The present petition is not the first petition filed with respect to the decision challenged by Petitioner. The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). The Court will take judicial notice of its own dockets.

On November 11, 2011, a petition for writ of habeas corpus challenging the BPH's unsuitability finding made on April 10, 2010, was dismissed by this Court in Timothy Demetrius Johnson v. California Board of Parole Hearings, 1:12-cv-01809-GSA-HC. (Docs. 6, 7.) The dismissal was expressly "with prejudice" (id. at 7:3); the reasons for the dismissal were that Petitioner had failed to state a cognizable claim for relief, and further that Petitioner had not shown that his ex post facto claim was meritorious (id. at 2-5).

Further, the docket of that proceeding reflects that a notice of appeal from this Court's judgment was filed on October 5, 2009 (Doc. 40), and the appeal is presently pending.

III. Successive Petition

Because the petition in the present case was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. ...


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