McNabb v. Yates et al

Filing 14

ORDER Deeming Supplemental Brief to be Part of the Petition re 1 and 7 ; ORDER Construing the Petition to Challenge the Denial of Parole on August 1, 2006; ORDER Denying Without Prejudice Petitioner's 10 Motions for an Evidentiary Hearing and 11 Motion for Summary Judgment; ORDER Construing Petitioner's 13 Petition for Writ of Mandate to be a Request for a Decision on the Merits; ORDER Denying Petitioner's 13 Request for a Decision on the Merits; ORDER DIRECTING RESPONDENT to File a Response to Petition; ORDER Setting a Briefing Schdule; ORDER Directing the Clerk to Serve Documents on the Attorney General, signed by Magistrate Judge Sheila K. Oberto on 12/16/2010. (Marrujo, C)

(HC) McNabb v. Yates et al

Doc. 14

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 RONALD EDWARD McNABB, 10 Petitioner, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Petitioner is a state prisoner proceeding pro se and in 27 forma pauperis with a petition for writ of habeas corpus pursuant 28 1
Dockets.Justia.com

v. WARDEN YATES, et al., Respondent.

) ) ) ) ) ) ) ) ) ) ) )

1:10-cv--01191-SKO-HC ORDER DEEMING SUPPLEMENTAL BRIEF TO BE PART OF THE PETITION (DOCS. 1, 7) ORDER CONSTRUING THE PETITION TO CHALLENGE THE DENIAL OF PAROLE ON AUGUST 1, 2006 ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTIONS FOR AN EVIDENTIARY HEARING (DOC. 10) AND FOR SUMMARY JUDGMENT (DOC. 11) ORDER CONSTRUING PETITIONER'S PETITION FOR WRIT OF MANDATE (DOC. 13) TO BE A REQUEST FOR A DECISION ON THE MERITS ORDER DENYING PETITIONER'S REQUEST FOR A DECISION ON THE MERITS (DOC. 13) ORDER REQUIRING RESPONDENT TO FILE A RESPONSE TO THE PETITION ORDER SETTING A BRIEFING SCHEDULE ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL

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to 28 U.S.C. § 2254.

Pursuant to 28 U.S.C. § 636(c)(1),

Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on August 30, 2010 (doc. 9). Pending before the Court is the petition, which was filed in the United States District Court for the Central District of California on June 22, 2010, and transferred to this Court on July 1, 2010. I. Deeming the Supplemental Brief to Be Part of the Petition

Several weeks after the petition was transferred to this 12 Court, Petitioner filed a supplemental brief on July 22, 2010. 13 The brief concerns denial of Petitioner's parole, and 14 specifically the absence of evidence for the conclusion that he 15 remains a danger to society. 16 consider the brief as a supplement to the petition. 17 Accordingly, the supplemental brief filed on July 22, 2010 18 (doc. 7) is DEEMED to be a part of, and supplement to, the 19 petition. 20 II. 21 Rule 4 of the Rules Governing § 2254 Cases in the United 22 States District Courts (Habeas Rules) requires the Court to make 23 a preliminary review of each petition for writ of habeas corpus. 24 The Court must summarily dismiss a petition "[i]f it plainly 25 appears from the petition and any attached exhibits that the 26 petitioner is not entitled to relief in the district court...." 27 Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 28 2 Screening and Construing the Petition It thus appears appropriate to

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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all

grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption;

O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition

that are vague, conclusory, or palpably incredible are subject to summary dismissal. Cir. 1990). Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). Here, the petition refers to the denial of Petitioner's parole. Petitioner argues that the denial violated 1) his right

to due process of law under the Fourteenth Amendment because of an absence of evidence to support the finding concerning the danger that Petitioner presented and the callous nature of his offense, 2) his right to be protected against ex post facto laws, and 3) his Eighth Amendment right to be free of cruel and unusual punishments. Although the petition includes materials relating to numerous, past denials of parole (Pet. 10-15, Supp. [doc. 7] 63

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36), Petitioner complains of the continuing denial of parole. The Court understands that the gravamen of Petitioner's complaint is thus the most recent denial of his parole that occurred on August 1, 2006. (Pet. 16.) To construe the petition as

challenging other, past denials would be inconsistent with the governing procedural principle that a habeas petition appropriately addresses only a single tribunal's decision. 2(e) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). Thus, should Petitioner Rule

wish to challenge a different decision or decisions, he would have to file a separate petition for each parole decision challenged. Further, Petitioner does not purport to have

exhausted state court remedies as to all the denials of parole that occurred in the past. Therefore, the Court CONSTRUES the petition as challenging the decision of August 1, 2006, finding Petitioner unsuitable for parole.1 III. Denial of Petitioner's Motion for Evidentiary Hearing

On September 1, 2010, Petitioner filed a motion for an evidentiary hearing on the ground that the merits of a factual dispute were not resolved in state court proceedings. (Doc. 10.)

The legal standards that govern Petitioner's motion are established. If a petition is not dismissed, the Court must

1 The Court notes that Petitioner appears to have twice challenged this p a r t i c u l a r denial of parole, but petitions in both cases were dismissed w i t h o u t prejudice. The petition filed in McNabb v. Board of Prison Terms, 1 : 0 7 - c v - 0 1 5 3 5 - A W I - S M S , was dismissed without prejudice for lack of exhaustion b y judgment entered February 26, 2008 (docs. 9, 12, 13). The petition filed i n McNabb v. Warden, et al., 1:08-cv-00173-LJO-SMS, was dismissed without p r e j u d i c e at Petitioner's request by judgment entered on March 4, 2008 (docs. 7 , 8).

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review the answer, any transcripts and records of state court proceedings, and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted. Rule 8(a)

of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). In considering a request for an

evidentiary hearing, the Court must first determine whether a factual basis exists in the record to support the petitioner's claim. Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999).

In this order, this Court will direct the Respondent to file a response to the petition. It is thus too early to determine

whether Petitioner is entitled to an evidentiary hearing because the full record is not before the Court. Further, Petitioner has

not demonstrated that there is a disputed material fact that would require factual development by way of an evidentiary hearing. Accordingly, Petitioner's motion for an evidentiary hearing is DENIED without prejudice. IV. Denial of Petitioner's Motion for Summary Judgment

On October 27, 2010, Petitioner filed a motion for summary judgment. (Doc. 11.)

Petitioner contends that his petition and the supplement thereto establish that his petition should be granted. However,

the full record of the proceedings before the parole authority is not before the Court and Respondent has not briefed the issues. Thus, it is premature to consider Petitioner's motion for summary judgment. Petitioner asserts in his motion that there are no issues of

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material fact.2

Although this may ultimately be shown by a

complete record to be true, at the present stage of the proceedings, Petitioner has not yet shown that he is entitled to judgment as a matter of law. Accordingly, Petitioner's motion for summary judgment is DENIED without prejudice. V. Order Construing the Petition for Writ of Mandamus to Be a Request for a Decision on the Merits and Denying the Request

On December 8, 2010, Petitioner filed a document entitled, "Petition for Writ of Mandamus." (Doc. 13.) This document was

filed within the instant habeas corpus proceeding and is directed to the United States District Court for the Eastern District of California. Further, review of the document reflects that

Petitioner seeks to have the Court consider the petition for writ of habeas corpus on the merits, grant the petition, and release Petitioner. (Doc. 13, 1-2.) Petitioner cites to Johnson v.

Rogers, 917 F.2d 1283 (10th Cir. 1990), in which the Court of Appeals directed a district court to proceed to determine a habeas petition that had been at issue for over fourteen months. Because the document seeking mandamus relief was directed to this Court and seeks only that the Court "READ, CONSIDER, AND GRANT" the petition for writ of habeas corpus (doc. 13, 2), the Court CONSTRUES Petitioner's petition for writ of mandamus to be a request for a decision on the merits. In the instant case, the petition is not at issue; a response is just being ordered now. It would be premature to

2 This assertion appears to be inconsistent with Petitioner's request for a n evidentiary hearing.

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consider the merits of the petition. Accordingly, the Court DENIES Petitioner's request for a decision on the merits. VI. Response to the Petition

The Court has conducted a preliminary review of the petition. It is not clear from the face of the petition whether 28 U.S.C. § 2243.

Petitioner is entitled to relief.

Accordingly, pursuant to Rule 4 of the Rules Governing Section 2254 Cases and Rule 16 of the Federal Rules of Civil Procedure,3 the Court hereby ORDERS: 1. Respondent SHALL FILE a RESPONSE to the petition4 within SIXTY (60) days of the date of service of this order. See Rule 4, Rules Governing Section 2254 Cases;

Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9th Cir. 1985) (court has discretion to fix time for filing a response). following: A. An ANSWER addressing the merits of the petition. Respondent SHALL INCLUDE with the ANSWER any and all transcripts or other documents necessary for the resolution of the issues presented in the petition.
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A response can be made by filing one of the

See Rule 5, Rules Governing Section

T h e Federal Rules of Civil Procedure "apply to proceedings for habeas c o r p u s ... to the extent that the practice in those proceedings (A) is not s p e c i f i e d in a federal statute, the Rules Governing Section 2254 Cases, or the R u l e s Governing Section 2255 Cases; and (B) has previously conformed to the p r a c t i c e in civil actions." Fed. R. Civ. P. 81(a)(4). Rule 12 also provides " [ t ] h e Federal Rules of Civil Procedure, to the extent that they are not i n c o n s i s t e n t with any statutory provisions or these rules, may be applied to a p r o c e e d i n g under these rules." Rule 12, Rules Governing Section 2254 Cases.
4 Respondent is advised that a scanned copy of the petition is available i n the Court's electronic case filing system (CM/ECF).

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2254 Cases.

Any argument by Respondent that a

claim of Petitioner has been procedurally defaulted SHALL BE MADE in the ANSWER, but must also address the merits of the claim asserted. A MOTION TO DISMISS the petition. A motion to

dismiss SHALL INCLUDE copies of all Petitioner's state court filings and dispositive rulings. Rule 5, Rules Governing Section 2254 Cases.5 If Respondent files an answer to the petition, Petitioner MAY FILE a traverse within THIRTY (30) days of the date Respondent's answer is filed with the Court. If no traverse is filed, the petition and See

answer are deemed submitted at the expiration of the thirty (30) days. If Respondent files a motion to dismiss, Petitioner SHALL FILE an opposition or statement of non-opposition within TWENTY-ONE (21) days of the date Respondent's motion is filed with the Court. If no opposition is

filed, the motion to dismiss is deemed submitted at the expiration of the thirty (30) days. Any reply to an

opposition to the motion to dismiss SHALL BE FILED within SEVEN (7) days after the opposition is served.

Rule 4 of the Rules Governing Section 2254 Cases provides that upon the C o u r t ' s determination that summary dismissal is inappropriate, the "judge must o r d e r the respondent to file an answer, motion, or other response within a f i x e d time, or to take other action the judge may order." Rule 4, Rules G o v e r n i n g Section 2254 Cases; see also Advisory Committee Notes to Rules 4 and 5 of Rules Governing Section 2254 Cases (stating that a dismissal may obviate t h e need for filing an answer on the substantive merits of the petition and t h a t the respondent may file a motion to dismiss for failure to exhaust); W h i t e v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (providing that a motion t o dismiss pursuant to Rule 4 is proper in a federal habeas proceeding).

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4.

Unless already submitted, both Respondent and Petitioner SHALL COMPLETE and RETURN to the Court within THIRTY (30) days a consent/decline form indicating whether the party consents or declines to consent to the jurisdiction of the United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).

5.

The Clerk of the Court is DIRECTED to SERVE a copy of this order on the Attorney General or his representative.

All motions shall be submitted on the record and briefs filed without oral argument unless otherwise ordered by the Court. Local Rule 230(l). Requests for extensions of time will All provisions of

only be granted upon a showing of good cause. Local Rule 110 are applicable to this order.

IT IS SO ORDERED. Dated: ie14hj December 16, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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