Rodriguez v. Swarthout et al
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 11/16/11 ORDERING that for all the reasons discussed above, this action is dismissed and this case is closed. CASE CLOSED. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CARMELO RODRIGUEZ,
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Petitioner,
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vs.
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No. CIV S-11-1244 GGH P
G. SWARTHOUT
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ORDER
Defendant.
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/
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to petitioner’s
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consent. Doc. 3.
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Petitioner challenges the 2008 decision by the California Board of Parole
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Hearings (BPH) finding him unsuitable for parole. On June 3, 2011, the undersigned issued a
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related case order noting that the instant case was related to case No. CIV S-10-0048 LKK GGH
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P. In No. CIV S-10-0048 LKK GGH P, petitioner alleged a violation of California’s “some
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evidence” requirement with respect to his 2008 denial of parole. The undersigned recommended
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that petition be dismissed in light of Swarthout v. Cooke, __ U.S. ___, 131 S. Ct. 859, 861
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(2011). The No. CIV-S-10-48 petition was dismissed on September 1, 2011.
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The instant petition also challenges California’s “some evidence” requirement
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with respect to his 2008 denial of parole. To the extent the instant petition could have been
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construed as a motion to amend the petition in No. CIV-S-10-48, any such motion must be
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denied. Petitioner presents some of the same claims in each petition, and while the wording is
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different in other claims, petitioner is still essentially challenging the “some evidence”
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requirement and the instant petition must be denied for the same reasons as No. CIV-S-10-48.
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To the extent in the instant petition, petitioner challenges the Supreme Court’s holding in
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Swarthout v. Cooke, __ U.S. ___, 131 S. Ct. 859, 861 (2011), or the undersigned’s interpretation
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of that case, any such argument is meritless.
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To the extent petitioner wishes to again challenge the 2008 denial of parole, he
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requires permission to file a successive petition. “Before a second or successive application
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permitted by this section is filed in the district court, the applicant shall move in the appropriate
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court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C.
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§ 2244(b)(3)(A). Here, petitioner has not obtained an order from the Ninth Circuit authorizing
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the district court to consider this successive petition. Petitioner cannot proceed with his
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successive petition in this court unless and until he obtains such an order.
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Therefore, IT IS HEREBY ORDERED that for all the reasons discussed above,
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this action is dismissed and this case is closed.
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DATED: November 16, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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GGH: AB
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rodr1244.dis
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