Down v. Haviland

Filing 23

ORDER signed by Judge Morrison C. England, Jr on 5/3/11 ORDERING 20 Motion for Clarification is granted; 21 Notice of Appeal is stricken; and 22 Motion for Certificate of Appealability is denied. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL HENRY DOWN,

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Petitioner,

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No. 2:09-cv-02794-MCE-EFB P

vs.

ORDER

J. HAVILAND, Warden,
Respondent.

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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On February 14, 2011, the magistrate judge issued findings

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and recommendations on respondent’s motion to dismiss, recommending that the motion be

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granted in part, denied in part, and that one of petitioner’s claims be dismissed by the court sua

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sponte as foreclosed by a recent U.S. Supreme Court decision. ECF No. 16. This court adopted

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those findings and recommendations on March 29, 2011. ECF No. 19.

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Petitioner now seeks clarification of the court’s findings and recommendations and order.

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ECF No. 20. He states that he is unsure whether his petition has been dismissed and has

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accordingly filed a notice of appeal and a motion for certificate of appealability, to be effective

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only if the case has been dismissed.
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ECF Nos. 21, 22; see ECF No. 20 at 3 (“[I]f the instant writ petition is not being

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denied/dismissed, the above Notice of Appeal & Certificate of Appealability can be disregarded

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at this time”).

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The court will grant petitioner’s motion for clarification and provides the following
clarification:

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For ease of reference, the court denoted plaintiff’s claims as numbered (1) through (8):

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(1) California’s Proposition 9, which increased the periods between parole
hearings, is an unconstitutional ex post facto law (Pet. at 4);

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(2) The California Board of Parole Hearings (“BPH”) deprived petitioner of due
process when it prevented him from cross-examining his “accusers” and objecting
to “BPH false testimony” (id.);

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(3) The BPH deprived petitioner of equal protection (id.);
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(4) Increased victim participation in petitioner’s parole consideration hearing
pursuant to Proposition 9 violated “the Privacy Act” (id.);

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(5) The BPH’s exercise of sentencing functions violates “the Separation of
Powers Doctrine” (id. at 4);

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(6) The BPH violated petitioner’s Eighth Amendment right to be free from cruel
and unusual punishment (id. at 8);

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(7) The BPH violated Blakely, Apprendi, and Cunningham by accusing petitioner
of crimes he did not commit (id. at 10);

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(8) The BPH denied petitioner parole despite the absence of “some evidence” of
his current dangerousness (id. at 10-11).

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The court concluded that claims (3) and (4) had not been exhausted and accordingly dismissed

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them without prejudice. ECF No. 16 at 2-3, 7; ECF No. 19 at 3. The court further found that the

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U.S. Supreme Court’s recent decision in Swarthout v. Cooke, No. 10-333, __ U.S. __, 2011 U.S.

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LEXIS 1067 (January 24, 2011) foreclosed petitioner’s claim (8) and thus dismissed that claim

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with prejudice. ECF No. 16 at 6-8; ECF No. 19 at 3.

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Thus, petitioner’s claims (1), (2), (5), (6), and (7) remain to be adjudicated on the merits,

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and the petition has not been dismissed in its entirely nor has any final judgment been entered.

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Petitioner expresses some concern that claim (8) was dismissed with prejudice. Petitioner

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is advised that, under Swarthout, he has no federal constitutional right to “some evidence” of

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current dangerousness supporting his parole denial. Claim (8) is simply no longer legally viable.

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As the petition remains pending as to several claims, the court will deny petitioner’s

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motion for certificate of appealability and order that the notice of appeal be stricken, in

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accordance with petitioner’s representation that he wishes to appeal only if the court’s March 29,

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2011 order dismissed the petition.

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Accordingly, it is hereby ORDERED that:

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1. Petitioner’s April 18, 2011 motion for clarification (ECF No. 20) is granted.

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2. Petitioner’s April 18, 2011 Notice of Appeal (ECF No. 21) is stricken.

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3. Petitioner’s April 18, 2011 Motion for Certificate of Appealability is denied.

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Dated: May 3, 2011

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________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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