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Acinelli v. Holland

United States District Court, C.D. California, Western Division

June 20, 2016

SAMUEL ACINELLI, Petitioner,
v.
KIM HOLLAND, Warden, Respondent.

          ORDER TO SHOW CAUSE

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         A Los Angeles County Superior Court jury convicted petitioner of three counts of lewd or lascivious acts upon a child under the age of fourteen years, in violation of California Penal Code section 288(a), three counts of forcible oral copulation, in violation of California Penal Code section 288a(c), and one count of aggravated sexual assault (forcible oral copulation) of a child under the age of fourteen and ten or more years younger than himself, in violation of California Penal Code section 269(a)(4). (Respondent's Notice of Lodgment Nos. 1-2). He was sentenced to a total term of fifteen years to life in state prison. (Id.).

         On January 16, 2013, the California Board of Parole Hearings conducted a hearing to determine if petitioner was suitable for parole. (See Pet., Exh. A). Petitioner attended the hearing and was represented by counsel. (See id. at 304). Petitioner was afforded an opportunity to address the presiding commissioner. (See, e.g., id. at 135-36).

         Ultimately, the parole board found petitioner unsuitable for parole. (Id. at 138). In doing so, the parole board informed petitioner of the materials it had considered in reaching that finding and explained to petitioner its reasons for finding him unsuitable for parole. (Id. at 137-47).

         After exhausting his state court remedies with respect to the parole board's decision, petitioner filed the instant Petition.

         II. PETITIONER'S CONTENTIONS

1. The parole board's finding that petitioner was not suitable for parole violated his constitutional rights because there was insufficient evidence to show that he currently poses a danger to public safety. (Petition at 5(A), 5(A)-1, 5(A)-2).
2. Petitioner was deprived of his right to effective assistance of counsel on appeal from his conviction because his appellate counsel failed to raise several meritorious arguments on appeal. (Id. at 5).
3. The parole board's decision to defer petitioner's next parole suitability hearing for five years from the date of his hearing violated his rights under the Ex Post Facto Clause. (Id. at 5, 6(C)).
4. The parole board violated petitioner's right to due process by denying him parole based, in part, on the erroneous finding that he had inadequate parole plans. (Id. at 6, 6(D)).

         III.

         DISCUSSION

         Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary review of the Petition. Pursuant to Rule 4, the Court must summarily dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Having conducted a preliminary review of the Petition, the Court issues this Order To Show Cause directed to petitioner ...


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