(HC) McNabb v. Yates et al, No. 1:2010cv01191 - Document 14 (E.D. Cal. 2010)
Court Description: ORDER Deeming Supplemental Brief to be Part of the Petition re 1 and 7 ; ORDER Construing the Petition to Challenge the Denial of Parole on August 1, 2006; ORDER Denying Without Prejudice Petitioner's 10 Motions for an Evidentiary Hearing and 11 Motion for Summary Judgment; ORDER Construing Petitioner's 13 Petition for Writ of Mandate to be a Request for a Decision on the Merits; ORDER Denying Petitioner's 13 Request for a Decision on the Merits; ORDER DIRECTING RESPONDENT to File a Response to Petition; ORDER Setting a Briefing Schdule; ORDER Directing the Clerk to Serve Documents on the Attorney General, signed by Magistrate Judge Sheila K. Oberto on 12/16/2010. (Marrujo, C)
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(HC) McNabb v. Yates et al Doc. 14 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RONALD EDWARD McNABB, 10 Petitioner, 11 12 13 14 15 16 17 18 v. WARDEN YATES, et al., Respondent. ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01191-SKO-HC ORDER DEEMING SUPPLEMENTAL BRIEF TO BE PART OF THE PETITION (DOCS. 1, 7) ORDER CONSTRUING THE PETITION TO CHALLENGE THE DENIAL OF PAROLE ON AUGUST 1, 2006 ORDER DENYING WITHOUT PREJUDICE PETITIONER’S MOTIONS FOR AN EVIDENTIARY HEARING (DOC. 10) AND FOR SUMMARY JUDGMENT (DOC. 11) ORDER CONSTRUING PETITIONER’S PETITION FOR WRIT OF MANDATE (DOC. 13) TO BE A REQUEST FOR A DECISION ON THE MERITS 19 20 ORDER DENYING PETITIONER’S REQUEST FOR A DECISION ON THE MERITS (DOC. 13) 21 22 ORDER REQUIRING RESPONDENT TO FILE A RESPONSE TO THE PETITION 23 ORDER SETTING A BRIEFING SCHEDULE 24 ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL 25 26 Petitioner is a state prisoner proceeding pro se and in 27 forma pauperis with a petition for writ of habeas corpus pursuant 28 1 Dockets.Justia.com 1 to 28 U.S.C. § 2254. 2 Petitioner has consented to the jurisdiction of the United States 3 Magistrate Judge to conduct all further proceedings in the case, 4 including the entry of final judgment, by manifesting consent in 5 a signed writing filed by Petitioner on August 30, 2010 (doc. 9). 6 Pending before the Court is the petition, which was filed in the 7 United States District Court for the Central District of 8 California on June 22, 2010, and transferred to this Court on 9 July 1, 2010. 10 I. Pursuant to 28 U.S.C. § 636(c)(1), Deeming the Supplemental Brief to Be Part of the Petition 11 Several weeks after the petition was transferred to this 12 Court, Petitioner filed a supplemental brief on July 22, 2010. 13 The brief concerns denial of Petitioner’s parole, and 14 specifically the absence of evidence for the conclusion that he 15 remains a danger to society. It thus appears appropriate to 16 consider the brief as a supplement to the petition. 17 Accordingly, the supplemental brief filed on July 22, 2010 18 (doc. 7) is DEEMED to be a part of, and supplement to, the 19 petition. 20 II. Screening and Construing the Petition 21 Rule 4 of the Rules Governing § 2254 Cases in the United 22 States District Courts (Habeas Rules) requires the Court to make 23 a preliminary review of each petition for writ of habeas corpus. 24 The Court must summarily dismiss a petition "[i]f it plainly 25 appears from the petition and any attached exhibits that the 26 petitioner is not entitled to relief in the district court....” 27 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 28 2 1 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 2 1990). 3 grounds of relief available to the Petitioner; 2) state the facts 4 supporting each ground; and 3) state the relief requested. 5 Notice pleading is not sufficient; rather, the petition must 6 state facts that point to a real possibility of constitutional 7 error. 8 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 9 Allison, 431 U.S. 63, 75 n. 7 (1977)). Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition 10 that are vague, conclusory, or palpably incredible are subject to 11 summary dismissal. 12 Cir. 1990). 13 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 14 corpus either on its own motion under Habeas Rule 4, pursuant to 15 the respondent's motion to dismiss, or after an answer to the 16 petition has been filed. 17 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 18 (9th Cir. 2001). 19 Advisory Committee Notes to Habeas Rule Here, the petition refers to the denial of Petitioner’s 20 parole. 21 to due process of law under the Fourteenth Amendment because of 22 an absence of evidence to support the finding concerning the 23 danger that Petitioner presented and the callous nature of his 24 offense, 2) his right to be protected against ex post facto laws, 25 and 3) his Eighth Amendment right to be free of cruel and unusual 26 punishments. 27 28 Petitioner argues that the denial violated 1) his right Although the petition includes materials relating to numerous, past denials of parole (Pet. 10-15, Supp. [doc. 7] 63 1 36), Petitioner complains of the continuing denial of parole. 2 The Court understands that the gravamen of Petitioner’s complaint 3 is thus the most recent denial of his parole that occurred on 4 August 1, 2006. 5 challenging other, past denials would be inconsistent with the 6 governing procedural principle that a habeas petition 7 appropriately addresses only a single tribunal’s decision. 8 2(e) of the Rules Governing Section 2254 Cases in the United 9 States District Courts (Habeas Rules). (Pet. 16.) To construe the petition as Rule Thus, should Petitioner 10 wish to challenge a different decision or decisions, he would 11 have to file a separate petition for each parole decision 12 challenged. 13 exhausted state court remedies as to all the denials of parole 14 that occurred in the past. 15 Further, Petitioner does not purport to have Therefore, the Court CONSTRUES the petition as challenging 16 the decision of August 1, 2006, finding Petitioner unsuitable for 17 parole.1 18 III. 19 On September 1, 2010, Petitioner filed a motion for an Denial of Petitioner’s Motion for Evidentiary Hearing 20 evidentiary hearing on the ground that the merits of a factual 21 dispute were not resolved in state court proceedings. 22 23 (Doc. 10.) The legal standards that govern Petitioner’s motion are established. If a petition is not dismissed, the Court must 24 25 26 27 28 1 The Court notes that Petitioner appears to have twice challenged this particular denial of parole, but petitions in both cases were dismissed without prejudice. The petition filed in McNabb v. Board of Prison Terms, 1:07-cv-01535-AWI-SMS, was dismissed without prejudice for lack of exhaustion by judgment entered February 26, 2008 (docs. 9, 12, 13). The petition filed in McNabb v. Warden, et al., 1:08-cv-00173-LJO-SMS, was dismissed without prejudice at Petitioner’s request by judgment entered on March 4, 2008 (docs. 7, 8). 4 1 review the answer, any transcripts and records of state court 2 proceedings, and any materials submitted under Rule 7 to 3 determine whether an evidentiary hearing is warranted. 4 of the Rules Governing Section 2254 Cases in the United States 5 District Courts (Habeas Rules). 6 evidentiary hearing, the Court must first determine whether a 7 factual basis exists in the record to support the petitioner’s 8 claim. 9 Rule 8(a) In considering a request for an Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). In this order, this Court will direct the Respondent to file 10 a response to the petition. 11 whether Petitioner is entitled to an evidentiary hearing because 12 the full record is not before the Court. 13 not demonstrated that there is a disputed material fact that 14 would require factual development by way of an evidentiary 15 hearing. 16 17 It is thus too early to determine Further, Petitioner has Accordingly, Petitioner’s motion for an evidentiary hearing is DENIED without prejudice. 18 IV. 19 On October 27, 2010, Petitioner filed a motion for summary 20 21 judgment. Denial of Petitioner’s Motion for Summary Judgment (Doc. 11.) Petitioner contends that his petition and the supplement 22 thereto establish that his petition should be granted. 23 the full record of the proceedings before the parole authority is 24 not before the Court and Respondent has not briefed the issues. 25 Thus, it is premature to consider Petitioner’s motion for summary 26 judgment. 27 However, Petitioner asserts in his motion that there are no issues of 28 5 1 material fact.2 2 complete record to be true, at the present stage of the 3 proceedings, Petitioner has not yet shown that he is entitled to 4 judgment as a matter of law. 5 6 7 8 9 Although this may ultimately be shown by a Accordingly, Petitioner’s motion for summary judgment is DENIED without prejudice. V. Order Construing the Petition for Writ of Mandamus to Be a Request for a Decision on the Merits and Denying the Request On December 8, 2010, Petitioner filed a document entitled, 10 “Petition for Writ of Mandamus.” (Doc. 13.) 11 filed within the instant habeas corpus proceeding and is directed 12 to the United States District Court for the Eastern District of 13 California. 14 Petitioner seeks to have the Court consider the petition for writ 15 of habeas corpus on the merits, grant the petition, and release 16 Petitioner. 17 Rogers, 917 F.2d 1283 (10th Cir. 1990), in which the Court of 18 Appeals directed a district court to proceed to determine a 19 habeas petition that had been at issue for over fourteen months. 20 This document was Further, review of the document reflects that (Doc. 13, 1-2.) Petitioner cites to Johnson v. Because the document seeking mandamus relief was directed to 21 this Court and seeks only that the Court “READ, CONSIDER, AND 22 GRANT” the petition for writ of habeas corpus (doc. 13, 2), the 23 Court CONSTRUES Petitioner’s petition for writ of mandamus to be 24 a request for a decision on the merits. 25 26 In the instant case, the petition is not at issue; a response is just being ordered now. It would be premature to 27 28 2 This assertion appears to be inconsistent with Petitioner’s request for an evidentiary hearing. 6 1 2 3 consider the merits of the petition. Accordingly, the Court DENIES Petitioner’s request for a decision on the merits. 4 VI. 5 The Court has conducted a preliminary review of the Response to the Petition 6 petition. 7 Petitioner is entitled to relief. 8 Accordingly, pursuant to Rule 4 of the Rules Governing Section 9 2254 Cases and Rule 16 of the Federal Rules of Civil Procedure,3 10 11 It is not clear from the face of the petition whether 28 U.S.C. § 2243. the Court hereby ORDERS: 1. Respondent SHALL FILE a RESPONSE to the petition4 12 within SIXTY (60) days of the date of service of this 13 order. 14 Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9th Cir. 15 1985) (court has discretion to fix time for filing a 16 response). 17 following: 18 A. See Rule 4, Rules Governing Section 2254 Cases; A response can be made by filing one of the An ANSWER addressing the merits of the petition. 19 Respondent SHALL INCLUDE with the ANSWER any and 20 all transcripts or other documents necessary for 21 the resolution of the issues presented in the 22 petition. See Rule 5, Rules Governing Section 23 3 24 25 26 27 28 The Federal Rules of Civil Procedure “apply to proceedings for habeas corpus ... to the extent that the practice in those proceedings (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has previously conformed to the practice in civil actions.” Fed. R. Civ. P. 81(a)(4). Rule 12 also provides “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” Rule 12, Rules Governing Section 2254 Cases. 4 Respondent is advised that a scanned copy of the petition is available in the Court’s electronic case filing system (CM/ECF). 7 1 2254 Cases. 2 claim of Petitioner has been procedurally 3 defaulted SHALL BE MADE in the ANSWER, but must 4 also address the merits of the claim asserted. 5 B. Any argument by Respondent that a A MOTION TO DISMISS the petition. A motion to 6 dismiss SHALL INCLUDE copies of all Petitioner’s 7 state court filings and dispositive rulings. 8 Rule 5, Rules Governing Section 2254 Cases.5 9 2. See If Respondent files an answer to the petition, 10 Petitioner MAY FILE a traverse within THIRTY (30) days 11 of the date Respondent’s answer is filed with the 12 Court. 13 answer are deemed submitted at the expiration of the 14 thirty (30) days. 15 3. If no traverse is filed, the petition and If Respondent files a motion to dismiss, Petitioner 16 SHALL FILE an opposition or statement of non-opposition 17 within TWENTY-ONE (21) days of the date Respondent’s 18 motion is filed with the Court. 19 filed, the motion to dismiss is deemed submitted at the 20 expiration of the thirty (30) days. 21 opposition to the motion to dismiss SHALL BE FILED 22 within SEVEN (7) days after the opposition is served. If no opposition is Any reply to an 23 24 25 26 27 28 5 Rule 4 of the Rules Governing Section 2254 Cases provides that upon the Court’s determination that summary dismissal is inappropriate, the “judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.” Rule 4, Rules Governing Section 2254 Cases; see also Advisory Committee Notes to Rules 4 and 5 of Rules Governing Section 2254 Cases (stating that a dismissal may obviate the need for filing an answer on the substantive merits of the petition and that the respondent may file a motion to dismiss for failure to exhaust); White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (providing that a motion to dismiss pursuant to Rule 4 is proper in a federal habeas proceeding). 8 1 4. Unless already submitted, both Respondent and 2 Petitioner SHALL COMPLETE and RETURN to the Court 3 within THIRTY (30) days a consent/decline form 4 indicating whether the party consents or declines to 5 consent to the jurisdiction of the United States 6 Magistrate Judge pursuant to Title 28 U.S.C. 7 § 636(c)(1). 8 5. 9 The Clerk of the Court is DIRECTED to SERVE a copy of this order on the Attorney General or his 10 representative. 11 All motions shall be submitted on the record and briefs 12 filed without oral argument unless otherwise ordered by the 13 Court. 14 only be granted upon a showing of good cause. 15 Local Rule 110 are applicable to this order. Local Rule 230(l). Requests for extensions of time will All provisions of 16 17 IT IS SO ORDERED. 18 Dated: ie14hj December 16, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 9
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