-SMS (HC) Pastrana v. Clark, No. 1:2008cv01820 - Document 30 (E.D. Cal. 2011)
Court Description: ORDER Adopting 25 Findings and Recommendations; ORDER Dismissing Petitioner's Third and Fourth Claims Concerning Parole Suitability Without Leave to Amend for Failure to State a Claim Cognizable in a Proceeding Pursuant to 28 U.S.C. 2254; ORDE R Denying the Petition with Respect to Petitioner's First, Second and Fifth Claims; ORDER Declining to Issue a Certificate of Appealability and Directing Entry of Judgment for Respondent, signed by Judge Oliver W. Wanger on 6/15/11. CASE CLOSED. (Gonzalez, R)
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-SMS (HC) Pastrana v. Clark Doc. 30 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 JAVIER PASTRANA, 11 Petitioner, 12 v. 13 KATHLEEN ALLISON, Warden, 14 Respondent. 15 16 17 18 19 20 ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv—01820–OWW-SMS-HC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (DOCS. 1, 25) ORDER DISMISSING PETITIONER’S THIRD AND FOURTH CLAIMS CONCERNING PAROLE SUITABILITY WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM COGNIZABLE IN A PROCEEDING PURSUANT TO 28 U.S.C. § 2254 (DOC. 1) ORDER DENYING THE PETITION WITH RESPECT TO PETITIONER’S FIRST, SECOND, AND FIFTH CLAIMS (DOC. 1) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING ENTRY OF JUDGMENT FOR RESPONDENT 21 22 Petitioner is a state prisoner proceeding pro se with a 23 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 24 The matter has been referred to the Magistrate Judge pursuant to 25 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 26 On March 4, 2011, the Magistrate Judge filed findings and 27 recommendations in which it was recommended that the petition for 28 writ of habeas corpus be denied with respect to Petitioner’s 1 Dockets.Justia.com 1 first, second, and fifth claims, which concerned alleged 2 infringement of Petitioner’s rights to due process of law and 3 protection from ex post facto laws based on the BPH’s 4 consideration of the facts of the offense, an alleged violation 5 of Petitioner’s plea agreement, and the alleged involuntariness 6 of Petitioner’s plea to the commitment offense. 7 recommended that with respect to Petitioner’s third and fourth 8 claims concerning a finding of unsuitability for parole and the 9 evidence supporting the findings, the petition be dismissed It was further 10 without leave to amend for failure to state a due process claim 11 cognizable in a proceeding pursuant to 18 U.S.C. § 2254. 12 Finally, it was recommended that the Court decline to issue a 13 certificate of appealability. 14 The findings and recommendations were served on all parties 15 on the same date and informed the parties that objections could 16 be filed within thirty (30) days of service. 17 On May 31, 2011, Petitioner filed timely objections to the 18 findings and recommendations. 19 a timely reply to Petitioner’s objections. 20 On June 13, 2011, Respondent filed In accordance with the provisions of 28 U.S.C. § 636 21 (b)(1)(C), this Court has conducted a de novo review of the case. 22 The undersigned has carefully reviewed the entire file and has 23 considered the objections and the reply to the objections; the 24 undersigned has determined there is no need to modify the 25 findings and recommendations based on the points raised in the 26 objections and reply. 27 recommendations are supported by the record and proper analysis. 28 The Court finds that the findings and Accordingly, it is ORDERED that: 2 1 2 3 1) The findings and recommendations filed on March 4, 2011, are ADOPTED IN FULL; and 2) The petition is DISMISSED without leave to amend for 4 failure to state a cognizable due process claim insofar as 5 Petitioner challenges in the third and fourth claims the BPH’s 6 finding of unsuitability for parole and the evidence supporting 7 that finding; and 8 9 3) The petition is DENIED with respect to Petitioner’s first, second, and fifth claims, which concerned alleged 10 infringement of Petitioner’s rights to due process of law and 11 protection from ex post facto laws based on the BPH’s 12 consideration of the facts of the offense, an alleged violation 13 of Petitioner’s plea agreement, and the alleged involuntariness 14 of Petitioner’s plea to the commitment offense; and 15 4) The Court DECLINES to issue a certificate of 16 appealability; and 17 5) The Clerk is DIRECTED to enter judgment for Respondent.IT IS SO ORDERED. 18 Emm0d6Dated: 19 June 15, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 3
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