(HC) Ouellette v. Dickinson, No. 2:2010cv01862 - Document 13 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 11/16/10 RECOMMENDING that 10 MOTION to DISMISS be denied; Respondent be directed to file, within 30 days from the date of any order by the district court adopting these find ings and recommendations, an answer to the petition and any and all transcripts or other documents relevant to the determination of the cognizable issues presented in the petition; and Petitioners traverse, if any, be due on or before 30 days from the date respondents answer is filed. 1 Petition for Writ of Habeas Corpus referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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(HC) Ouellette v. Dickinson Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARK ALLAN OUELLETTE, 11 12 Petitioner, No. 2:10-cv-1862 JAM JFM (HC) vs. 13 KATHLEEN DICKINSON, 14 Respondent. 15 16 FINDINGS AND RECOMMENDATIONS / Petitioner is a state prisoner proceeding pro se with an application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 decision of California 18 Governor Arnold Schwarzenegger to reverse a decision of the California Board of Parole 19 Hearings finding petitioner suitable for parole. Respondent has moved to dismiss this action, 20 contending that petitioner failed to exhaust state court remedies with respect to his contention, set 21 forth as ground three of the petition, that the Governor lacked authority to make credibility 22 determinations in connection with his review of the Board’s suitability decision. 23 A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of 24 some transgression of federal law binding on the state courts. See Middleton v. Cupp, 768 F.2d 25 1083, 1085 (9th Cir. 1985). It is unavailable for alleged error in the interpretation or application 26 of state law. Id. at 1085. The exhaustion of state court remedies is a prerequisite to the granting 1 Dockets.Justia.com 1 of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the 2 exhaustion requirement by providing the highest state court with a full and fair opportunity to 3 consider all federal claims before presenting them to the federal court. Picard v. Connor, 404 4 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 5 1021 (1986). 6 The claim which respondent contends is unexhausted is predicated solely on state 7 law. For that reason, petitioner’s alleged failure to present that claim to the California Supreme 8 Court does not require dismissal of this action, which should proceed on petitioner’s claim that 9 the Governor’s decision to reverse the Board’s suitability finding violated his right to due 10 process.1 11 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 12 1. Respondent’s August 27, 2010 motion to dismiss be denied; 13 2. Respondent be directed to file, within thirty days from the date of any order by 14 the district court adopting these findings and recommendations, an answer to the petition and any 15 and all transcripts or other documents relevant to the determination of the cognizable issues 16 presented in the petition; and 17 18 3. Petitioner’s traverse, if any, be due on or before thirty days from the date respondent’s answer is filed. 19 These findings and recommendations will be submitted to the United States 20 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 fourteen days after being served with these findings and recommendations, any party may file 22 written objections with the court. The document should be captioned “Objections to Findings 23 and Recommendations.” Any response to the objections shall be filed and served within fourteen 24 25 26 1 Petitioner has divided this claim into two separate grounds in the petition, but under controlling precedent he has only one claim available to him: whether the Governor’s decision violated his right to due process. 2 1 days after service of the objections. The parties are advised that failure to file objections within 2 the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 3 F.2d 1153 (9th Cir. 1991). 4 DATED: November 16, 2010. 5 6 7 8 9 12 ouel1862.mtd 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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