United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. COTA UNITED STATES MAGISTRATE JUDGE
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).
State Court Proceedings
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.
Current Federal Petition
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.
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.
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). 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