Lathan v. Swarthout

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 09/15/11 granting 9 Motion to Proceed IFP. Petitioner's application for a writ of habeas corpus is dismissed. The clerk is directed to close the case. The court declines to issue a certi ficate of appealability. The clerk of the court shall serve a copy of this order together with a copy of petitioner's 12/29/10 petition for a writ of habeas corpus with any and all attachments on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California. (cc: Michael Farrell, Attorney General) (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD LATHAN,
Petitioner,

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vs.
GARY SWARTHOUT,
Respondent.

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ORDER
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No. CIV-11-0027 EFB P

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28

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U.S.C. § 2254. He challenges the decision of the California Board of Parole Hearings (“Board”)

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to deny him parole at a parole consideration hearing held on July 31, 2009. Pet. at 6.1 He claims

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that the Board’s 2009 decision was unconstitutional because it relied upon his commitment

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offense to support a finding that petitioner was currently dangerous, and because it denied parole

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for seven years pursuant to Marsy’s Law, in violation of the Ex Post Facto Clause. Id. at 6, 13-

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14. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See E.D. Cal. Local

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Rules, Appx. A, at (k)(4).

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For ease of reference, all references to page numbers in the petition are to those
assigned via the court’s electronic filing system.
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Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a).

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs

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of suit. Therefore, the request will be granted. See 28 U.S.C. § 1915(a). However, for the

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reasons explained below, the court finds that petitioner’s application for a writ of habeas corpus

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must be dismissed. See Rule 4, Rules Governing § 2254 Cases (requiring summary dismissal of

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habeas petition if, upon initial review by a judge, it plainly appears “that the petitioner is not

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entitled to relief in the district court”).

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I.

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Due Process Claim
Petitioner contends that the Board’s decision to deny him parole violated his right to

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equal protection and his Sixth Amendment right to trial by jury, but petitioner has not alleged

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facts to support such grounds for relief. Aside from the ex post facto claim, discussed below,

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petitioner’s challenge to the Board’s decision is that the Board “used the commitment offense

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circumstances for a determination of [petitioner’s] current dangerousness to [the] public if

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released . . . .” Pet. at 13. Liberally construed, the petition alleges that the Board’s decision

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violated petitioner’s right to due process because it was not supported by some evidence of

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petitioner’s current dangerousness.

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Under California law, a prisoner is entitled to release unless there is “some evidence” of

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his or her current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re

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Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). According to the United States Supreme Court,

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however, federal habeas review of a parole denial is limited to the narrow question of whether a

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petitioner has received “fair procedures.” Swarthout v. Cooke, 526 U.S. __ (2011), No. 10-333,

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2011 WL 197627, at *2 (Jan. 24, 2011). In other words, a federal court may only review

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whether a petitioner has received a meaningful opportunity to be heard and a statement of

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reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners

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were “allowed to speak at their parole hearings and to contest the evidence against them, were

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afforded access to their records in advance, and were notified as to the reasons why parole was
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denied”). Thus, this court may not review whether the Board correctly applied California’s

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“some evidence” standard. Id. at *2.

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The record reflects that petitioner was given the opportunity to be heard at his 2009

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parole suitability hearing and received a statement of the reasons why parole was denied. See

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Dckt. No. 1 at 19-101. This is all that due process requires. Swarthout, 2011 WL 197627, at

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**2-3. Accordingly, petitioner is not entitled to relief on this claim.

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II.

Ex Post Facto Claim

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Petitioner claims the Board violated the Ex Post Facto Clause by denying him parole for

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seven years pursuant to Marsy’s Law. As discussed below, the court finds this claim should be

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dismissed because petitioner is already a member of a class action – Gilman v. Fisher, No. Civ.

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S-05-830 LKK GGH – which addresses this issue.2

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Marsy’s Law, approved by California voters in November 2008, amended California’s

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law governing parole deferral periods. See Gilman v. Davis, 690 F. Supp.2d 1105, 1109-13

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(E.D. Cal. 2010) (granting plaintiffs’ motion for preliminary injunction to enjoin enforcement of

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Marsy’s Law, to the extent it amended former California Penal Code section 3041.5(b)(2)(A)),

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rev’d sub nom. Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011). Prior to Marsy’s

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Law, the Board deferred subsequent parole suitability hearings to indeterminately-sentenced

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inmates for one year unless the Board determined it was unreasonable to expect that parole could

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be granted the following year, in which case the Board could defer the subsequent parole

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suitability hearing for up to five years. Cal. Pen. Code § 3041.5(b)(2) (2008). Marsy’s Law,

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which applied to petitioner at his 2009 parole suitability hearing, amended section 3041.5(b)(2)

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to impose a minimum deferral period of three years, and to authorize the Board’s deferral of a

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subsequent parole hearing for up to seven, ten, or fifteen years. Id. § 3041.5(b)(3) (2010).

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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The Constitution provides that “No State shall . . . pass any . . . ex post facto Law.” U.S.

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Const. art. I, § 10. A law violates the Ex Post Facto Clause of the United States Constitution if

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it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makes a

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crime’s punishment greater than when the crime was committed; or (3) deprives a person of a

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defense available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52

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(1990). The Ex Post Facto Clause “is aimed at laws that retroactively alter the definition of

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crimes or increase the punishment for criminal acts.” Himes v. Thompson, 336 F.3d 848, 854

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(9th Cir. 2003) (quoting Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). See also Cal.

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Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is also violated

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if: (1) state regulations have been applied retroactively; and (2) the new regulations have created

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a “sufficient risk” of increasing the punishment attached to the crimes. Himes, 336 F.3d at 854.

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The retroactive application of a change in state parole procedures violates ex post facto only if

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there exists a “significant risk” that such application will increase the punishment for the crime.

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See Garner v. Jones, 529 U.S. 244, 259 (2000).

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In a class action for injunctive relief certified under Rule 23(b)(2) of the Federal Rules of

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Civil Procedure, a court may, but is not required, to permit members to opt-out of the suit.

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Crawford v. Honig, 37 F.3d 485, 487 n.2 (9th Cir. 1994). In certifying the Gilman class, the

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district court found that plaintiffs satisfied Rule 23(a) and Rule 23(b)(2)’s requirement that “the

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party opposing the class has acted or refused to act on grounds that apply generally to the class,

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so that final injunctive relief or corresponding declaratory relief is appropriate respecting the

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class as a whole.” See Gilman v. Fisher, No. Civ. S-05-830 LKK GGH (“Gilman”), Dckt. No.

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182 (March 4, 2009 Order certifying class pursuant to Rule 23(b)(2) of the Federal Rules of

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Civil Procedure), Dckt. No. 257 (June 3, 2010 Ninth Circuit Court of Appeals Memorandum

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affirming district court’s order certifying class). According to the district court in Gilman, its

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members “may not maintain a separate, individual suit for equitable relief involving the same

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subject matter of the class action.” Gilman, Dckt. No. 296 (December 10, 2010 Order) at 2; see
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also Dckt. No. 278 (October 1, 2010 Order), Dckt. No. 276 (September 28, 2010 Order), Dckt.

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No. 274 (September 23, 2010 Order).

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One of the plaintiffs’ claims in Gilman is that Marsy’s Law’s amendments to section

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3041.5(b)(2) regarding parole deferral periods violates the Ex Post Facto Clause because “when

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applied retroactively, [they] create a significant risk of increasing the measure of punishment

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attached to the original crime.” Gilman, Dckt. No. 154-1 (Fourth Amended/Supplemental

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Complaint), Dckt. No. 183 (March 4, 2009 Order granting plaintiff’s motion for leave to file

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Fourth Amended/Supplemental Complaint). With respect to this ex post facto claim, the class in

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Gilman is comprised of “all California state prisoners who have been sentenced to a life term

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with possibility of parole for an offense that occurred before November 4, 2008.” Gilman, Dckt.

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No. 340 (April 25, 2011 Order amending definition of class). The Gilman plaintiffs seek

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declaratory and injunctive relief, including a permanent injunction enjoining the Board from

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enforcing Marsy’s Law’s amendments to section 3041.5(b) and requiring that the Board conduct

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a new parole consideration hearing for each member of the class. Gilman, Dckt. No. 154-1

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(Fourth Amended/Supplemental Complaint) at 14.

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Here, petitioner is a California state prisoner who was sentenced to a life term with the

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possibility of parole for an offense that occurred before November 4, 2008. Dckt. No. 1 at 21.

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Plaintiff is therefore is a member of the Gilman class. Although petitioner seeks a writ of habeas

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corpus, success on his ex post facto claim would not entitle petitioner to release on parole.

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Because the ex post facto claim concerns only the timing of petitioner’s next suitability hearing,

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success on this claim would not necessarily result in determinations that petitioner is suitable for

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parole and should be released from custody. Rather, petitioner’s equitable relief would be

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limited to an order directing the Board to conduct a new parole suitability hearing and enjoining

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the Board from enforcing any unconstitutional provisions of Marsy’s Law. This is the same

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relief petitioner would be entitled to as a member of the Gilman class action. See Gilman, Dckt.

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No. 154-1 (Fourth Amended/Supplemental Complaint) at 14. Here, petitioner’s only requested
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relief is to receive a new parole suitability hearing. Dckt. No. 1 at 14.

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Accordingly, the court finds that petitioner’s rights will “be fully protected by his

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participation as a class member” in Gilman, and will therefore dismiss petitioner’s ex post facto

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claim. See Crawford v. Bell, 599 F.2d 890, 892 (9th Cir. 1979); see also McNeil v. Guthrie, 945

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F.2d 1163, 1165 (10th Cir. 1991) (“Individual suits for injunctive and equitable relief from

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alleged unconstitutional prison conditions cannot be brought where there is an existing class

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action.”); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (“To allow

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individual suits would interfere with the orderly administration of the class action and risk

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inconsistent adjudications.”).

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III.

Conclusion

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Based on the foregoing, the court concludes that the petition should be summarily

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dismissed for failure to state a cognizable claim. There is no basis for concluding that a tenable

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claim for relief could be pleaded if leave to amend were granted. See Jarvis v. Nelson, 440 F.2d

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13, 14 (9th Cir. 1971) (petition for habeas corpus should not be dismissed without leave to

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amend unless it appears that no tenable claim for relief can be pleaded were such leave granted).

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Accordingly, it is hereby ORDERED that:

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1. Petitioner’s request for leave to proceed in forma pauperis is granted;

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2. Petitioner’s application for a writ of habeas corpus is dismissed;

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3. The Clerk is directed to close the case;

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4. The Court declines to issue a certificate of appealability; and

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5. The Clerk of the Court shall serve a copy of this order together with a copy of

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petitioner’s December 29, 2010 petition for a writ of habeas corpus with any and all attachments

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on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California.

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DATED: September 15, 2011.

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