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Timothy D. Johnson v. James Hartley

February 4, 2013

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



The opinion of the court was delivered by: Stanley A. Boone United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1)

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant petition for writ of habeas corpus on December 10, 2012.

On September 1, 1991, Petitioner was convicted of aiding and abetting an attempted murder and was sentenced to seven years to life in prison.

On April 14, 2010, Petitioner appeared before the Board of Parole for his fourth subsequent parole consideration hearing. He was found unsuitable for release and the next parole hearing was postponed for three years.

Petitioner filed a state habeas corpus petition in the Sacramento County Superior Court contending that he was denied equal protection and due process when the Board of Parole Hearings denied his request to advance his next parole suitability hearing for failing to present new evidence in support of his request. The petition was denied in a reasoned decision on September 26, 2011.

Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. The petition was summarily denied on December 15, 2011.

Petitioner subsequently filed a petition for writ of habeas corpus in the California Supreme Court. The petition was summarily denied on June 13, 2012.

In the instant petition, Petitioner contends his equal protection and due process rights were violated by the Board of Parole Hearings' summary denial of his request to advance a parole hearing date because contrary to the board's decision he submitted new evidence in support of his request. Petitioner also contends that the application of the Marsy's law to defer a subsequent parole hearing for three years violates the Ex Post Facto Clause. Petitioner further contends that his constitutional rights have been violated because his seven year to life sentence with the possibility of parole has been converted into a life sentence without the possibility of parole. After a thorough review of the instant petition, the Court finds it must be dismissed.

DISCUSSION

I. Preliminary Review of Petition

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). A petition for habeas corpus should not be dismissed 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).

II. Failure to State a Cognizable Claim for Relief

Where a petitioner files his federal habeas petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an ...


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