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Nguon v. Baughman

United States District Court, E.D. California

July 9, 2019

HUNG DUONG NGUON, Petitioner,
v.
DAVID BAUGHMAN, Respondent.

          FINDINGS AND RECOMMENDATIONS

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss (ECF No. 12).

         I. BACKGROUND

         A. State Court Proceedings

         Petitioner was convicted in 1997 of kidnaping, carjacking, and robbery and sentenced to life plus 3 years with the possibility of parole. See ECF No. 1, pg. 2. On September 7, 2017, the Board of Parole Hearings denied parole and deferred further parole consideration for three years. See id. at 11. Petitioner filed a state habeas action in the Los Angeles County Superior Court challenging the denial of parole, which was denied on 1 March 6, 2018. See id. at 7-8. The California Court of Appeal for the Third Appellate District also denied habeas relief, explaining that petitioner should have filed in the Second Appellate District. See ECF No. 1, pg. 9. The California Supreme Court denied habeas relief with a citation to People v. Duvall, 9 Cal.4th 464, 474 (holding that a petition for writ of habeas corpus must include copies of reasonably available evidence). See ECF No. 1, pg. 10.

         B. Current Federal Petition

         This case proceeds on the original petition, filed on September 11, 2018. See ECF No. 1. Petitioner raises two grounds for relief:

Ground 1 The Board denial of my parole violate (sic) constitutional disproportionality of my imprisonment, since such excessive confinement violates the cruel and unusual clause. ... as it deny (sic) my statutory entitlement to a uniform and proportionate sentence, which resulted in the imposition of ex post facto punishment.
Ground 2 The Board illegally denied me to present favorable evidence in the hearing as they deliberately cited older records to make it look like I am currently dangerous when in actuality I am not, which I have been disciplinary free for many years. Thus, their denial violates procedural protections guaranteed by the Due Process Clause.

ECF No. l, pgs. 3-4.

         II. DISCUSSION

         In his motion to dismiss, respondent argues: (1) the petition must be dismissed because it contains unexhausted claims; and (2) the petition must be dismissed because it contains claims that are not cognizable on federal habeas review.

         A. Exhaustion

         Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy,455 U.S. 509 (1982); see also Kelly v. Small315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler,336 F.3d 839 (9th Cir. 2003).[1] The exhaustion doctrine is based on a policy of federal and state comity, designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. “A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal court no state remedies are available to the petitioner and the petitioner has not deliberately by-passed the state ...


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