(HC) Lollis v. Haviland, No. 2:2009cv03558 - Document 26 (E.D. Cal. 2011)

Court Description: ORDER ADOPTING 17 FINDINGS AND RECOMMENDATIONS in full signed by Judge Morrison C. England, Jr. on 01/28/11; respondent's 11 Motion to Dismiss is GRANTED IN PART; the petition shall continue on claims set forth in the order; the Court's 22 Order requiring addition breifing is VACATED as moot in light of Swarthout. To the extent the new Supreme Court decision affects Petitioner's claims, additional Findings and Recommendations will address the issues in turn. (Benson, A.)

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(HC) Lollis v. Haviland Doc. 26 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH LOLLIS, 12 Petitioner, 13 14 No. 2:09-cv-03558-MCE-GGH P vs. ORDER J. W. HAVILAND, et al., 15 Respondents. 16 / 17 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 7, 2010, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. Respondent has filed 23 objections to the findings and recommendations. 24 /// 25 /// 26 /// 1 Dockets.Justia.com 1 On October 27, 2010, this Court asked for additional information from the parties in light 2 of the Ninth Circuit’s decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). Hayward 3 has since been abrogated by the United States Supreme Court. Swarthout v. Cooke, No. 10-333, 4 562 U.S. ___ (Jan. 24, 2011). 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 6 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 7 court finds the findings and recommendations to be supported by the record and by proper 8 analysis. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The findings and recommendations filed September 7, 2010, are adopted in full; 11 2. Respondent’s March 22, 2010, motion to dismiss (ECF No. 11) is granted in part, in 12 that petitioner’s claim regarding the BPH violating its own regulations and his First Amendment 13 claim is stricken. This petition will continue on claims that 1) the BPH’s failure to find 14 petitioner suitable for parole violated his due process rights because it was not supported by 15 ‘some evidence;’ and 2) the BPH’s decision to defer petitioner’s next parole consideration for 16 four years violated his due process rights under the Fourteenth Amendment; and 17 3. The Court’s previous Order requiring additional briefing is VACATED as moot in 18 light of Swarthout. To the extent the new Supreme Court decision affects Petitioner’s claims, 19 additional Findings and Recommendations will address the issues in turn. 20 21 IT IS SO ORDERED. Dated: January 28, 2011 22 23 24 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 25 26 2

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