Ally v. Mendoza-Powers

Filing 21

ORDER ADOPTING in FULL the FINDINGS and RECOMMENDATIONS 16 ; ORDER DENYING Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Enter Judgment, signed by Chief Judge Anthony W. Ishii on 1/28/09: A CERTIFICATE OF APPEALABILITY IS NOT NECESSARY as the instant petition challenged the denial of parole. See Rosas v. Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005); White v. Lambert, 370 F.3d 1002, 1010-13 (9th Cir. 2004). (CASE CLOSED)(Hellings, J)

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1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U . S . D i s t r ic t C o u r t E. D . C a lifo r n ia Jp UNITED STATES DISTRICT COURT DOWARD ALLY, Petitioner, v. KATHY MENDOZA-POWERS, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:06-CV-00414 AWI JMD HC ORDER ADOPTING FINDINGS AND RECOMMENDATION [Doc. #16] ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The Magistrate Judge issued a Findings and Recommendation On September 19, 2008, recommending that the petition for writ of habeas corpus be DENIED with prejudice. The Magistrate Judge further recommended that the Clerk of Court be DIRECTED to enter judgment. The Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order. On October 7, 2008, the Court found that the Petitioner's CDC number had been incorrectly listed. The Findings and Recommendation was re-served on Petitioner and the deadline to file objections was extended to thirty (30) days from the date of service of that order. On November 6, 2008, Petitioner filed objections to the Findings and Recommendation. In accordance with the provisions of 28 U.S.C. 636(b)(1)(C), this Court has conducted a de novo review of the case. The crime was committed in a cruel fashion, largely because of its calculated 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U . S . D i s t r ic t C o u r t E. D . C a lifo r n ia manner and trivial reason. The BPH was concerned over the lack of insight displayed by Petitioner at the hearing, as well as his lack of self-help, and his testimony at the hearing was sufficient to justify this concern. The commitment offense and the lack of insight into the crime displayed by Petitioner constitutes "some of evidence" to support the BPH's decision that Petitioner poses an unreasonable risk of danger to the public if released. See Rose v. Kane, 270 Fed.App'x. 610, 611-12 (9th Cir. 2008); Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007); Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006); In re Shauptis, 44 Cal.4th 1241, 1260-61 (2008). Having carefully reviewed the entire file and having considered the objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis, and there is no need to modify the Findings and Recommendation based on the points raised in the objections. Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendation issued September 19, 2008, is ADOPTED IN FULL; 2. 3. 4. The Petition for Writ of Habeas Corpus is DENIED with prejudice; The Clerk of Court is DIRECTED to enter judgment; and A certificate of appealability is not necessary as the instant petition challenged the denial of parole. See Rosas v. Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005); White v. Lambert, 370 F.3d 1002, 1010-13 (9th Cir. 2004). . IT IS SO ORDERED. Dated: 0m8i78 January 28, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE Jp 2

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