Arafiles v. Curry et al

Filing 40

ORDER signed by Judge Kimberly J. Mueller on 03/31/2012. The findings and recommendations filed February 23, 2012 37 are adopted in full; Respondent's motion to dismiss 31 is granted; The Clerk is directed to close the case; The court grants a certificate of appealability with respect only to the question of whether a parole suitability determination for a prisoner serving an indeterminate sentence, without consideration of term, can constitute a new violation of such petitioners rights sufficient to render petitioners habeas petition timely. (Andrews, P)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHNNY ARAFILES,
Petitioner,

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No. CIV S-06-1678 KJM EFB P

vs.
BEN CURRY, et al.,
Respondents.

ORDER
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Petitioner, a state prisoner proceeding through counsel, has filed this application

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for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States

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Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 23, 2012, the magistrate judge filed findings and recommendations,

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Petitioner has filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court finds the findings and recommendations to be supported by the record and by the

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proper analysis.
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In the objections to the findings and recommendations, petitioner argues that his

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claim is timely because subsequent denials of parole act to violate the parole board’s initial set

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term and thereby constitute a continuing violation. This court finds this argument unpersuasive.

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See Murphy v. Espinoza, 401 F. Supp. 2d 1048, 1052 (C.D. Cal. 2005) (noting that the factual

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predicate for a challenge to an indeterminate term accrues on the day petitioner believes he

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should be released). However, the Ninth Circuit has not ruled on the effects of a subsequent

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parole suitability determination, where the parole board deems the prisoner unsuitable for parole

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but does not consider its term-fixing role. Were the Circuit to adopt petitioner’s interpretation

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that each denial of parole based on suitability, without addressing term length, constitutes a new

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violation, his claim would be timely. A certificate of appealability is granted with respect to that

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claim.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 23, 2012, are adopted in

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full;

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2. Respondent’s motion to dismiss is granted;

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3. The Clerk is directed to close the case; and

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4. The court grants a certificate of appealability with respect only to the question

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of whether a parole suitability determination for a prisoner serving an indeterminate sentence,

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without consideration of term, can constitute a new violation of such petitioner’s rights sufficient

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to render petitioner’s habeas petition timely under 28 U.S.C. § 2254(d).

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DATED: March 31, 2012.

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UNITED STATES DISTRICT JUDGE

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