(HC) Tionson v. Price, No. 2:2016cv01749 - Document 5 (E.D. Cal. 2016)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/29/2016 ORDERING petitioner's 4 request to proceed IFP is GRANTED; and the Clerk shall assign a district judge to this case. IT IS RECOMMENDED that petitioner's 1 petition for writ of habeas corpus be summarily dismissed; and this case be closed. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY L. TIONSON, 12 Petitioner, 13 v. 14 J. PRICE, 15 No. 2:16-cv-1749 CKD P ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Examination of the request to proceed in forma pauperis reveals 20 that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed 21 in forma pauperis will be granted. See 28 U.S.C. § 1915(a). 22 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 23 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 24 petitioner is not entitled to relief. The court has conducted that review. 25 Petitioner challenges the fact that he was denied parole in 2015. Petitioner has a liberty 26 interest in parole protected by the Due Process Clause of the Fourteenth Amendment. Swarthout 27 v. Cooke, 562 U.S. 216, 219-20 (2011). However, the procedural protections which must be 28 afforded with respect to the liberty interest implicated are minimal; the “Constitution does not 1 1 require more@ than Aan opportunity to be heard@ at a parole hearing and that the potential parolee 2 be Aprovided a statement of the reasons why parole was denied.@ Id. at 220. Essentially, 3 petitioner argues that the evidence presented at his parole hearing is insufficient to support a 4 denial of parole. However, petitioner has no federal rights concerning the sufficiency of evidence 5 presented at parole proceedings. While petitioner does have rights concerning the sufficiency of 6 evidence presented at parole proceedings which arise under California law, state law cannot 7 provide the basis for federal habeas relief. See 28 U.S.C. ' 2254(a) For these reasons, the court will recommend that petitioner’s petition for writ of habeas 8 9 corpus be summarily dismissed. 10 Accordingly, IT IS HERBY ORDERED that: 11 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 4) is granted; and 12 2. The Clerk of the Court is directed to assign a district court judge to this case. 13 IT IS HEREBY RECOMMENDED that: 14 1. Petitioner’s petition for writ of habeas corpus be summarily dismissed; and 15 2. This case be closed. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, petitioner may file written 19 objections with the court. Such a document should be captioned “Objections to Magistrate 20 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 21 certificate of appealability should issue in the event he files an appeal of the judgment in this 22 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 23 deny a certificate of appealability when it enters a final order adverse to the applicant). Petitioner 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 2 1 is advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: August 29, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 1 tion1749.nop 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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