Balbuena v. McDonald et al

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 4/14/2011 ORDERING that the 2 application to proceed IFP is GRANTED; the petition is DISMISSED w/ 28 days to file an amended petition challenging a specific decision by the BPH. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAVIER BALBUENA,

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Petitioner,

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No. 2: 11-cv-0759 JAM KJN P

vs.
M.D. McDONALD, et al.,

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Respondents.

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ORDER
/

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Petitioner, a state prisoner proceeding without counsel, has filed a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in

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forma pauperis.

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Examination of the in forma pauperis application reveals that petitioner is unable

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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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Petitioner names two respondents, Warden McDonald and the Immigration and

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Naturalization Service (“INS”). Petitioner alleges that in 1988 he was convicted of second

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degree murder and sentenced to 16 years to life. In 1989, the INS placed a detainer/immigration

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hold on petitioner, as a result of which he is subject to deportation to Cuba upon his release from

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prison.
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Petitioner alleges that the California Board of Parole Hearings (“BPH”) is using

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the parole hold as a reason to improperly deny him parole. Petitioner also alleges that the INS

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violated his due process rights by imposing the detainer/immigration hold without a hearing.

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Petitioner’s claims against the INS are not properly raised in a habeas corpus

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petition brought pursuant to 28 U.S.C. § 2254. Rather, these claims should be separately raised

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in a habeas corpus petition brought pursuant to 28 U.S.C. § 2241. Accordingly, petitioner’s

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claims challenging the INS detainer/immigration hold are dismissed. Petitioner is granted

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twenty-eight days from the date of this order to file an amended habeas corpus petition raising

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only his claims concerning his parole suitability. The amended petition must challenge a

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decision made by the BPH following a particular parole suitability hearing. In other words, the

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amended petition should not generally challenge decisions by the BPH.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis (Dkt. No. 2) is granted;

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2. The petition is dismissed with twenty-eight days to file an amended petition

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challenging a specific decision by the BPH.

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DATED: April 14, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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bal759.100

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