(HC) Anderson v. Sherman, No. 2:2016cv02530 - Document 6 (E.D. Cal. 2016)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/15/16 ORDERING that the Clerk of Court is directed to randomlyassign a district judge to this action. Further, it is RECOMMENDED that this action be dismissed without prejudice. Randomly assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days.(Dillon, M)
Download PDF
<![CDATA[
(HC) Anderson v. Sherman Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARTHUR ANDERSON, 12 No. 2:16-cv-2530 GGH P Petitioner, 13 v. 14 STU SHERMAN, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application 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. The court has not ruled on the application to proceed in forma 20 pauperis. 21 Petitioner is serving a term of nine years to life imprisonment with the possibility of 22 parole. He was convicted on February 4, 1974 for assaulting another prisoner, while he was in 23 prison serving his first, life-term sentence. The only ground raised in the instant petition is denial 24 of representation by a skilled attorney. The relief sought by petitioner is a “Motion for 25 Emergency Release Under Three Judge Court Order of February 10, 2014,” “for California prison 26 inmates (60) years old or older who have served 25 years or more on indeterminate or 27 determinate sentence.” 28 Review of the petition and attached exhibits, and review of the Inmate Locator Website 1 Dockets.Justia.com 1 operated by the California Department of Corrections and Rehabilitation (CDCR),1 indicates that 2 petitioner is 77 years of age, and has been incarcerated under the authority of the CDCR since 3 1963. Petitioner is currently incarcerated at the California Substance Abuse Treatment Facility in 4 Corcoran. The petition indicates that petitioner’s claim is not exhausted. Review of the 5 California Appellate Court Case Information website2 indicates that petitioner has not challenged 6 a matter in the California Court of Appeal or California Supreme Court since 2012. Petitioner 7 requests issuance of an order granting his motion for emergency release based on his advanced 8 age. 9 Federal habeas relief is available “only on the ground that [petitioner] is in custody in 10 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). This 11 “in custody” requirement is jurisdictional and requires that the matter challenged by a federal 12 habeas petition be premised on a claim that petitioner’s “custody offends federal law.” Bailey v. 13 Hill, 599 F.3d 976, 979 (9th Cir. 2010). Rule 4 of the Rules Governing Section 2254 Cases 14 authorizes a district court to dismiss a petition if it “plainly appears from the petition and any 15 attached exhibits that the petitioner is not entitled to relief in the district court.” 16 Petitioner appears to be challenging the refusal of prison authorities to parole petitioner 17 pursuant to California’s “Elderly Prisoner Parole Program.” However, “[t]here is no right under 18 the Federal Constitution to be conditionally released before the expiration of a valid sentence, and 19 the States are under no duty to offer parole to their prisoners.” Swarthout v. Cooke, 562 U.S. 20 216, 220 (2011) (citing Greenholtz v. Inmates of Nebraska, 442 U.S. 1, 7 (1979)). Because 21 petitioner’s challenge does not state a federal habeas claim, this action should be dismissed. 22 Petitioner may direct his papers to the Prison Law Office, at General Delivery, San Quentin CA 23 24 25 26 27 28 1 See http://inmatelocator.cdcr.ca.gov/. This Court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201; see also City of Sausalito v. O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may take judicial notice of a record of a state agency not subject to reasonable dispute.”). 2 See http://appellatecases.courtinfo.ca.gov/index.html. This court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201. 2 1 94964. See “Information re: Elderly Prisoner Parole,” issued January 2015 by the Prison Law 2 Office, at p. 2 (“If you are an eligible lifer and think the elder parole program is not being fairly 3 applied to you, please write us. We will read your letter and consider whether we can help.”). 3 4 5 Furthermore, to the extent petitioner maintains a claim of ineffective assistance of counsel, it would appear that this claim is unexhausted and time barred. 6 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 7 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement 8 by providing the highest state court with a full and fair opportunity to consider all claims before 9 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 10 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). Petitioner’s 11 claim has not been presented to the California Supreme Court. See also 28 U.S.C. § 2244(d)(1) 12 (one year period of limitation shall apply to an application for writ of habeas corpus). 13 14 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court is directed to randomly assign a district judge to this action. 15 16 Further, IT IS RECOMMENDED that this action be dismissed without prejudice, see Rule 4, Rules Governing Section 2254 Cases. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 19 after being served with these findings and recommendations, petitioner may file written 20 objections with the court. Such a document should be captioned “Objections to Magistrate 21 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 22 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 23 Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: November 15, 2016 25 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 26 27 28 GGH:076/ande1045.elderly-pr-fr 3 See http://www.prisonlaw.com/research.php. 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
