Estrada v. Hartley
Filing
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ORDER PARTIALLY ADOPTING 17 FINDINGS AND RECOMMENDATIONS and Denying Petition for Writ of Habeas Corpus; ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY signed by Chief Judge Anthony W. Ishii on 09/09/2011. CASE CLOSED. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARIO ESTRADA,
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Petitioner,
v.
JAMES HARTLEY,
Respondent.
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1:08-CV-830 AWI JMD (HC)
ORDER PARTIALLY ADOPTING
FINDINGS AND RECOMMENDATION
AND DENYING PETITION FOR WRIT OF
HABEAS CORPUS
(Doc. No. 17)
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
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On August 24, 2010, based on its review of Petitioner’s Ground One, the Court issued an
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order granting the petition for writ of habeas corpus and found that the Board of Parole Hearings’
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denial of parole was not supported under the “some evidence” standard. On July 8, 2011, the Ninth
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Circuit Court of Appeal reversed this Court’s Order granting relief, in light of Swarthout v. Cooke,
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131 S. Ct. 859 (2011). Thus, based on the Ninth Circuit’s decision, Petitioner is not entitled to relief
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based on the claim raised in Ground One. However, Petitioner’s Ground Two was not previously
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addressed by the Court’s August 24, 2010 Order or by the Ninth Circuit’s decision.
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In Ground Two, Petitioner argues the Board's decision to deny him parole violated the
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principles set forth in Cunningham v. California, 549 U.S. 270 (2007) (“Cunningham”). The
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Magistrate Judge issued a findings and recommendation (“F&R”) on September 9, 2009, and found
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that Petitioner’s rights under Cunningham were not implicated. See Doc. 17 at 12. Petitioner
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addressed the Magistrate’s Judge’s recommendation to deny this claim in his objections, filed on
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September 18, 2009. See Doc 18 at 3.
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The Court agrees with the F&R’s analysis. Cunningham held that except for a prior
U .S. D istrict C ourt
E. D . C alifornia
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conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum
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must be submitted to a jury, and proved beyond a reasonable doubt. Cunningham, 549 U.S. at
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288-89. As Petitioner was sentenced to an indeterminate state prison term of sixteen years to life,
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(See Petition at 2), any decision by the Board to deny petitioner parole does not actually increase his
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sentence. Rather, it is a determination that Petitioner is not suitable for parole and his already
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imposed sentence should continue. Therefore, Cunningham does not apply and Petitioner is not
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entitled to federal relief for this claim. See Duesler v. Woodford, 269 Fed. Appx. 670, 671 (9th Cir.
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2008); Ramirez-Salgado v. Scribner, 2010 U.S. Dist. LEXIS 45901 (S.D. Cal. Feb. 16, 2010); Kobe
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v. Curry, 2009 U.S. Dist. LEXIS 101683 (N.D. Cal. Oct. 20, 2009).
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Additionally, a certificate of appealability (“COA”) is not warranted. See 28 U.S.C. §
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2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000). In order to obtain a COA, petitioner must
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show: (1) that jurists of reason would find it debatable whether the petition stated a valid claim of a
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denial of a constitutional right; and (2) that jurists of reason would find it debatable whether the
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district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. at 484. In the present
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case, jurists of reason would not find debatable whether the petition was properly dismissed with
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prejudice.
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ORDER
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The Findings and Recommendation are ADOPTED consistent with this order;
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2.
The Petition for Writ of Habeas Corpus is DENIED with prejudice;
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3.
The Court DECLINES to issue a Certificate of Appealability; and
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4.
The Clerk shall CLOSE this case.
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IT IS SO ORDERED.
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Dated:
0m8i78
August 9, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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U .S. D istrict C ourt
E. D . C alifornia
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