-SKO (HC) Brown v. Clark, No. 1:2010cv01910 - Document 17 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the Petition without Leave to Amend 1 , Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 5/31/11. Referred to Judge Wanger. (Verduzco, M)
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-SKO (HC) Brown v. Clark Doc. 17 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CLEMENT BROWN, ) ) ) ) ) ) ) ) ) ) ) ) 11 Petitioner, 12 13 14 v. KEN CLARK, 15 Warden, Respondent. 16 1:10-cv—01910-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: DAYS THIRTY (30) 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. The matter has been referred to the 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. Pending before the Court is the petition, 22 which was filed on October 13, 2010. Respondent answered the 23 petition on February 15, 2011. Petitioner did not file a 24 traverse. 25 I. Jurisdiction 26 Because the petition was filed after April 24, 1996, the 27 effective date of the Antiterrorism and Effective Death Penalty 28 1 Dockets.Justia.com 1 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 2 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 3 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 4 A district court may entertain a petition for a writ of 5 habeas corpus by a person in custody pursuant to the judgment of 6 a state court only on the ground that the custody is in violation 7 of the Constitution, laws, or treaties of the United States. 8 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 9 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 10 11 Lindh 28 16 (2010) (per curiam). Petitioner alleges that he was an inmate of the California 12 Substance Abuse Treatment Facility and State Prison at Corcoran, 13 California (CSATF), serving a sentence of twenty-six (26) years 14 to life imposed by the Orange County Superior Court after 15 Petitioner was convicted of first degree murder in October 1985. 16 (Pet. 1.) 17 constitutional rights when he was found unsuitable for parole by 18 the California Board of Parole Hearings (BPH) after a hearing 19 held on January 12, 2010, at the CSATF. 20 violations of the Constitution are alleged. 21 decision challenged was made at Corcoran, California, which is 22 located within the jurisdiction of this Court. 23 2254(a), 2241(a), (d). 24 Petitioner claims that he suffered violations of his (Pet. 5) Thus, Further, the Respondent Ken Clark answered the petition. 28 U.S.C. §§ (Doc. 12, 1.) 25 Petitioner thus named as a respondent a person who had custody of 26 the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 27 2(a) of the Rules Governing Section 2254 Cases in the District 28 Courts (Habeas Rules). See, Stanley v. California Supreme Court, 2 1 2 3 4 21 F.3d 359, 360 (9th Cir. 1994). Accordingly, the Court concludes that it has jurisdiction over the proceeding and over the Respondent. II. 5 Failure to Allege a Cognizable Due Process Claim A. Background 6 Petitioner alleges that his right to due process of law 7 guaranteed by the Fourteenth Amendment was violated by the BPH’s 8 decision finding him unsuitable for parole for three years 9 because the decision was not supported by some evidence of 10 dangerousness. 11 commitment offense and Petitioner’s disciplinary history in 12 prison to support the finding that Petitioner presented a danger 13 if released failed to comply with California case law requiring 14 an explicit articulation of a rational nexus between the evidence 15 and the finding of dangerousness. 16 exemplary conduct in prison, favorable psychiatric 17 recommendation, and comprehensive parole plans demonstrated that 18 he was no longer dangerous and merited a grant of parole. (Pet. 19 5-17.) Petitioner argues that the BPH’s reliance on the Petitioner argues that his 20 The transcript of the hearing held on January 12, 2010, 21 reflects that Petitioner was present at the parole hearing (pet. 22 21, 24, 21-110), received records before the hearing and was 23 given an opportunity to correct or clarify the record (pet. 26, 24 28), testified under oath concerning numerous factors of parole 25 suitability (pet. 30-87), and made a statement to the BPH in 26 favor of parole (pet. 95-97). 27 appeared at the hearing, advocated on Petitioner’s behalf, and 28 made a closing statement in favor of finding Petitioner suitable An attorney for Petitioner 3 1 for parole. (Pet. 24, 27-30, 89-94.) 2 Further, Petitioner was present when the commissioners 3 stated the reasons for the BPH’s denial of parole for three 4 years, which included the nature and circumstances of the 5 commitment offense, Petitioner’s disciplinary history in prison, 6 prior criminality, drug and alcohol use, unstable social history, 7 age, and the prosecutor’s opposition to release. 8 9 B. (Pet. 99-110.) Analysis The Supreme Court has characterized as reasonable the 10 decision of the Court of Appeals for the Ninth Circuit that 11 California law creates a liberty interest in parole protected by 12 the Fourteenth Amendment Due Process Clause, which in turn 13 requires fair procedures with respect to the liberty interest. 14 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 15 However, the procedures required for a parole determination 16 are the minimal requirements set forth in Greenholtz v. Inmates 17 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 18 Swarthout v. Cooke, 131 S.Ct. 859, 862. 19 rejected inmates’ claims that they were denied a liberty interest In Swarthout, the Court 20 1 21 22 23 24 25 26 27 28 In Greenholtz, the Court held that a formal hearing is not required with respect to a decision concerning granting or denying discretionary parole; it is sufficient to permit the inmate to have an opportunity to be heard and to be given a statement of reasons for the decision made. Id. at 16. The decision maker is not required to state the evidence relied upon in coming to the decision. Id. at 15-16. The Court reasoned that because there is no constitutional or inherent right of a convicted person to be released conditionally before expiration of a valid sentence, the liberty interest in discretionary parole is only conditional and thus differs from the liberty interest of a parolee. Id. at 9. Further, the discretionary decision to release one on parole does not involve restrospective factual determinations, as in disciplinary proceedings in prison; instead, it is generally more discretionary and predictive, and thus procedures designed to elicit specific facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due process was satisfied where the inmate received a statement of reasons for the decision and had an effective opportunity to insure that the records being considered were his records, and to present any special considerations demonstrating why he was an appropriate candidate for parole. Id. at 15. 4 1 because there was an absence of “some evidence” to support the 2 decision to deny parole. 3 4 5 6 7 8 9 10 The Court stated: There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication–and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California’s received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.) 11 Swarthout, 131 S.Ct. 859, 862. 12 petitioners had received the process that was due: 13 14 The Court concluded that the They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.... 15 16 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 17 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 18 noted that California’s “some evidence” rule is not a substantive 19 federal requirement, and correct application of California’s 20 “some evidence” standard is not required by the federal Due 21 Process Clause. Id. at 862-63. 22 Petitioner asks this Court to evaluate the BPH’s application 23 of California’s “some evidence” rule. Thus, Petitioner asks this 24 Court to engage in the very type of analysis foreclosed by 25 Swarthout. Petitioner does not state facts that point to a real 26 possibility of constitutional error or that otherwise would 27 entitle Petitioner to habeas relief because California’s “some 28 5 1 evidence” requirement is not a substantive federal requirement. 2 Review of the record for “some evidence” to support the denial of 3 parole is not within the scope of this Court’s habeas review 4 under 28 U.S.C. § 2254. 5 specific points concerning the suitability factors in his case 6 would amount to undertaking the very analysis disapproved by the 7 Court in Swarthout. 8 9 Consideration of Petitioner’s more Petitioner cites state law concerning the parole process and the appropriate weight to be given to evidence. To the extent 10 that Petitioner’s claim or claims rest on state law, they are not 11 cognizable on federal habeas corpus. 12 not available to retry a state issue that does not rise to the 13 level of a federal constitutional violation. 14 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 15 U.S. 62, 67-68 (1991). 16 state law are not cognizable in federal habeas corpus. 17 Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 18 that Petitioner’s due process claim concerning the evidence must 19 be dismissed. Federal habeas relief is Wilson v. Corcoran, Alleged errors in the application of Souch v. The Court concludes 20 A petition for habeas corpus should not be dismissed without 21 leave to amend unless it appears that no tenable claim for relief 22 can be pleaded were such leave granted. 23 F.2d 13, 14 (9th Cir. 1971). 24 Jarvis v. Nelson, 440 It appears from the attachments to Petitioner’s petition 25 that Petitioner had an opportunity to review in advance and 26 contest the evidence against him, and had a chance to speak at 27 the hearing. 28 reasons for the decision. Further, Petitioner received a statement of the There is a clear documentary showing 6 1 that Petitioner received all process that was due under the 2 circumstances. 3 The Court, therefore, concludes that Petitioner could not 4 state facts constituting a cognizable due process claim in 5 connection with the denial of his parole. 6 be recommended that Petitioner’s due process claim be dismissed 7 without leave to amend. Accordingly, it will 8 III. 9 Petitioner argues that the BPH’s application of California’s Ex Post Facto Claim 10 Proposition 9 (Marsy’s Law) to Petitioner, whose crime was 11 committed before the proposition took effect, was a violation of 12 the Ex Post Facto Clause and the Due Process Clause. 13 asserts that application of Proposition 9 created a significant 14 risk of prolonging his incarceration because he received a three- 15 year denial instead of the two-year denial he had received at a 16 prior parole hearing; further, the risk was not ameliorated by 17 the availability of an advanced hearing upon a change in 18 circumstances or new information. 19 an inmate is found suitable for parole and the BPH sets the term 20 for the commitment offense, the inmate has already served several 21 years to a decade or more beyond the term that is set. 22 extended deferrals of parole allowed by Proposition 9 will 23 undoubtedly result in longer period of incarceration and in 24 inmates serving many years beyond the terms set by the BPH. 25 Thus, the BPH’s decision in Petitioner’s case was an ex post 26 facto violation. Petitioner Petitioner asserts that when Thus, (Pet. 15-16.) 27 Petitioner further contends that the BPH’s decision was 28 arbitrary because in a previous decision, the BPH had determined 7 1 that Petitioner would be dangerous for only two more years. 2 Petitioner argues this violated his right to due process of law. 3 (Pet. 5, 13-16.) 4 On June 10, 2010, the Orange County Superior Court denied 5 Petitioner’s habeas corpus petition, which included Petitioner’s 6 ex post facto claim. 7 that as applied to Petitioner, Proposition 9 had not altered the 8 definition of crimes or increased their punishment and did not 9 alter the standards for determining parole suitability and (Pet., doc. 1-1, 51.) The court concluded 10 setting a release date. 11 § 3041.5(d)(1) and (b((4), Petitioner could request an advanced 12 hearing, and the BPH could advance the date of Petitioner’s next 13 parole hearing if there was a change in circumstances or new 14 information establishing a reasonable likelihood that an extended 15 period of imprisonment was not warranted. 16 demonstrated that the retroactive application of a statute 17 extending the intervals between parole consideration hearings 18 created a significant risk of increasing his punishment. 19 court concluded that Petitioner had not established a violation 20 of due process or ex post facto principles. 21 10-11.) 22 Pursuant to Cal. Pen. Code Petitioner had not The (Ans., doc. 12-3, The California Court of Appeal, Fourth Appellate District 23 summarily denied Petitioner’s petition for writ of habeas corpus 24 on July 8, 2010. 25 Court denied a petition for review on September 22, 2010, without 26 a statement of reasons or authority. 27 28 (Ans., doc. 12-6, 2.) The California Supreme (Ans., doc. 12-9, 2.) The Constitution provides, “No State shall... pass any... ex post facto Law.” U.S. Const. art I, § 10. 8 The Ex Post Facto 1 Clause prohibits any law which: 1) makes an act done before the 2 passing of the law, which was innocent when done, criminal; 2) 3 aggravates a crime and makes it greater than it was when it was 4 committed; 3) changes the punishment and inflicts a greater 5 punishment for the crime than when it was committed; or 4) alters 6 the legal rules of evidence and requires less or different 7 testimony to convict the defendant than was required at the time 8 the crime was committed. 9 (2000). 10 Carmell v. Texas, 529 U.S. 513, 522 Application of a state regulation retroactively to a 11 defendant violates the Ex Post Facto Clause if the new 12 regulations create a “sufficient risk” of increasing the 13 punishment for the defendant’s crimes. 14 F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of 15 Corrections v. Morales, 514 U.S. 499, 509 (1995)). 16 or statute does not by its own terms show a significant risk, the 17 respondent must demonstrate, by evidence drawn from the rule's 18 practical implementation by the agency charged with exercising 19 discretion, that its retroactive application will result in a 20 longer period of incarceration than under the earlier rule. 21 Garner v. Jones, 529 U.S. 244, 250, 255 (2000). Himes v. Thompson, 336 When the rule 22 Previous amendments to Cal. Pen. Code § 3041.5, which 23 initiated longer periods of time between parole suitability 24 hearings, have been upheld against challenges that they violated 25 the Ex Post Facto Clause. 26 Corrections v. Morales, 514 U.S. 499, 509 (1995) (where the great 27 majority of prisoners were found unsuitable, a 1982 increase of 28 the maximum period for deferring hearings to five years for See, e.g., California Department of 9 1 offenders who had committed multiple homicides only altered the 2 method of setting a parole release date and did not result in a 3 sufficient risk of increasing the punishment or measure of 4 punishment for the crime in the absence of modification of 5 punishment or of the standards for determining either the initial 6 date for parole eligibility or an inmate’s suitability for 7 parole); 8 1989) (finding no ex post facto violation in applying amended 9 Cal. Pen. Code § 3041.5(b)(2)(A), permitting delay of suitability 10 hearings for several years, to prisoners sentenced to a life term 11 before California’s Determinate Sentencing Law was implemented in 12 1977 who otherwise would have been entitled to periodic review of 13 suitability). 14 Watson v. Estelle, 886 F.2d 1093, 1097-98 (9th Cir. Similarly, a state law permitting the extension of intervals 15 between parole consideration hearings for all prisoners serving 16 life sentences from three to eight years did not violate the Ex 17 Post Facto Clause where expedited parole review was available 18 upon a change of circumstances or receipt of new information 19 warranting an earlier review, and where there was no showing of 20 increased punishment. 21 Under such circumstances, there was no significant risk of 22 extending a prisoner’s incarceration. 23 that state parole authorities retain broad discretion concerning 24 release and must have flexibility in formulating parole 25 procedures and addressing problems associated with confinement 26 and release. 27 nature of a grant of parole is the need to permit changes in the 28 manner in which the discretion is “informed and then exercised.” Garner v. Jones, 529 U.S. 244, 249 (2000). Id. at 252-53. Id. The Court recognized Inherent in the discretionary 10 1 Id. at 253. 2 on the parole authority’s determination of the likelihood of a 3 future grant of parole; as a result, parole resources were put to 4 better use, which in turn increased the likelihood of release. 5 Id. at 254. 6 proceedings to determine the risk of increased punishment. 7 Further, the timing of the hearings depended in part In Garner, the matter was remanded for further In Gilman v. Schwarzenegger, - F.3d -, No. 10-15471, 2011 WL 8 198435, at *2 (9th Cir. Jan. 24, 2011), the Ninth Circuit 9 reversed a grant of injunctive relief to plaintiffs in a class 10 action seeking to prevent the board from enforcing Proposition 11 9's amendments that defer parole consideration. 12 concluded that the plaintiffs were not likely to succeed on their 13 claim on the merits. 14 evidence concerning whether or not more frequent parole hearings 15 would result in more frequent grants of parole, as distinct from 16 denials. 17 9 were noted to be more extensive than those before the Court in 18 Morales and Garner, advanced hearings, which would remove any 19 possibility of harm, were available upon a change in 20 circumstances or new information. 21 facts in the record from which it might be inferred that 22 Proposition 9 created a significant risk of prolonging 23 Plaintiffs’ incarceration, the plaintiffs had not established a 24 likelihood of success on the merits on the ex post facto claim. 25 Id. at *8. 26 Id. at *3. Id. at *1, *3-*8. The court In Gilman, there was no Although the changes wrought by Proposition Id. at *6. In the absence of The Court may take judicial notice of court records. Fed. 27 R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 28 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 11 1 2 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). The Court takes judicial notice of the docket and specified 3 orders in the pending class action, Gilman v. Fisher, 2:05-cv- 4 00830-LKK-GGH, including the order granting motion for class 5 certification filed on March 4, 2009 (Doc. 182, 9:7-15). 6 motion indicates that the Gilman class is made up of California 7 state prisoners who 1) have been sentenced to a term that 8 includes life, 2) are serving sentences that include the 9 possibility of parole, 3) are eligible for parole, and 4) have The 10 been denied parole on one or more occasions. 11 reflects that the Ninth Circuit affirmed the order certifying the 12 class. 13 of the order of March 4, 2009, in which the court described the 14 case as including challenges to Proposition 9's amendments to 15 Cal. Pen. Code § 3041.5 based on the Ex Post Facto Clause, and a 16 request for injunctive and declaratory relief against 17 implementation of the changes. 18 (Docs. 257, 258.) The docket further The Court also takes judicial notice (Doc. 182, 5-6.) The relief sought by Petitioner concerns the scheduling of 19 further proceedings by the BPH and the validity of state 20 procedures used to deny parole suitability – matters removed from 21 the fact or duration of confinement. 22 been held to be cognizable under 42 U.S.C. § 1983 as claims 23 concerning conditions of confinement. 24 U.S. 74, 82 (2005). 25 habeas corpus relief. 26 485-86 (1973); Nelson v. Campbell, 541 U.S. 637, 643 (2004); 27 Muhammad v. Close, 540 U.S. 749, 750 (2004). 28 Such types of claims have Wilkinson v. Dotson, 544 Thus, they may fall outside the core of See, Preiser v. Rodriguez, 411 U.S. 475, Further, Petitioner's requested relief overlaps with the 12 1 relief requested in the Gilman class action. 2 a member of a class action for equitable relief from prison 3 conditions may not maintain an individual suit for equitable 4 relief concerning the same subject matter. 5 F.2d 890, 891-92 (9th Cir. 1979). 6 efficient and orderly administration of justice for a court to 7 proceed with an action that would possibly conflict, or 8 interfere, with the determination of relief in another pending 9 action which is proceeding and in which the class has been 10 11 A plaintiff who is Crawford v. Bell, 599 It is contrary to the certified. Here, Petitioner’s own allegations reflect that he qualifies 12 as a member of the class in Gilman. 13 jurisdiction over same subject matter and may grant the same 14 relief. 15 disposition of its cases with economy of time and effort for both 16 the court and the parties. 17 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 18 (9th Cir. 1992). 19 this Court concludes that dismissal of Petitioner’s ex post facto 20 claim in this action is appropriate and necessary to avoid 21 interference with the orderly administration of justice. 22 Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland, 23 No. CIV S-09-CV-3462 GEB, 2011 WL 23064, *2-*5 (E.D. Cal. Jan. 4, 24 2011). The court in Gilman has A court has inherent power to control its docket and the Landis v. North American Co., 299 In the exercise of its inherent discretion, Cf., 25 A petition for habeas corpus should not be dismissed without 26 leave to amend unless it appears that no tenable claim for relief 27 can be pleaded were such leave granted. 28 F.2d 13, 14 (9th Cir. 1971). Jarvis v. Nelson, 440 In view of the allegations of the 13 1 petition and the pendency of the Gilman class action, amendment 2 of the petition with respect to the ex post facto claim would be 3 futile and unproductive. 4 Insofar as Petitioner alleges that the BPH’s decision was 5 arbitrary and thus a denial of due process of law, the Court 6 notes that transcript of the proceedings demonstrates that the 7 BPH considered parole suitability criteria pursuant to state law 8 and rendered a decision supported by express reasoning concerning 9 the pertinent factors of parole suitability. Petitioner has not 10 alleged facts demonstrating arbitrary action on the part of the 11 BPH that would entitle him to relief. 12 13 Accordingly, it will be recommended that the ex post facto claim and due process claims be dismissed without leave to amend. 14 IV. 15 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 16 appealability, an appeal may not be taken to the Court of Appeals 17 from the final order in a habeas proceeding in which the 18 detention complained of arises out of process issued by a state 19 court. 20 U.S. 322, 336 (2003). 21 only if the applicant makes a substantial showing of the denial 22 of a constitutional right. 23 petitioner must show that reasonable jurists could debate whether 24 the petition should have been resolved in a different manner or 25 that the issues presented were adequate to deserve encouragement 26 to proceed further. 27 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 28 certificate should issue if the Petitioner shows that jurists of 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 14 A 1 reason would find it debatable whether the petition states a 2 valid claim of the denial of a constitutional right and that 3 jurists of reason would find it debatable whether the district 4 court was correct in any procedural ruling. 5 529 U.S. 473, 483-84 (2000). 6 Slack v. McDaniel, In determining this issue, a court conducts an overview of 7 the claims in the habeas petition, generally assesses their 8 merits, and determines whether the resolution was debatable among 9 jurists of reason or wrong. Id. It is necessary for an 10 applicant to show more than an absence of frivolity or the 11 existence of mere good faith; however, it is not necessary for an 12 applicant to show that the appeal will succeed. 13 Cockrell, 537 U.S. at 338. Miller-El v. 14 A district court must issue or deny a certificate of 15 appealability when it enters a final order adverse to the 16 applicant. 17 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 18 debate whether the petition should have been resolved in a 19 different manner. 20 of the denial of a constitutional right. 21 recommended that the Court DECLINE to issue a certificate of 22 appealability. Petitioner has not made a substantial showing Accordingly, it will be 23 V. 24 In summary, Petitioner’s due process and ex post facto Recommendations 25 claims should be dismissed without leave to amend. 26 will be recommended that the petition be dismissed without leave 27 to amend. 28 Accordingly, it is RECOMMENDED that: 15 Therefore, it 1 1) The petition be DISMISSED without leave to amend; and 2 2) The Court DECLINE to issue a certificate of 3 appealability; and 4 5 3) The Clerk be DIRECTED to close the case because dismissal would terminate the action in its entirety. 6 These findings and recommendations are submitted to the 7 United States District Court Judge assigned to the case, pursuant 8 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 9 the Local Rules of Practice for the United States District Court, 10 Eastern District of California. 11 being served with a copy, any party may file written objections 12 with the Court and serve a copy on all parties. 13 should be captioned “Objections to Magistrate Judge’s Findings 14 and Recommendations.” 15 and filed within fourteen (14) days (plus three (3) days if 16 served by mail) after service of the objections. 17 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 18 636 (b)(1)(C). 19 objections within the specified time may waive the right to 20 appeal the District Court’s order. 21 1153 (9th Cir. 1991). Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 22 23 IT IS SO ORDERED. 24 Dated: ie14hj May 31, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 16
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