Tillman v. Board of Prison Terms

Filing 16

ORDER signed by Magistrate Judge Kendall J. Newman on 4/15/11 ORDERING that petitioners amended application for writ of habeas corpus is DISMISSED with leave to file a second amended petition within 30 days; Clerk of the Court is directed to send petitioner the courts form for application for writ of habeas corpus, and a copy of petitioners 1 original petition. (Dillon, 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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ANTHONY B. TILLMAN,
Petitioner,

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No. 2:11-cv-0816 KJN P

vs.
BOARD OF PRISON TERMS,
Respondent.

ORDER
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Petitioner is a state prisoner proceeding without counsel with an application for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order filed April 5, 2011, the petition

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was dismissed and petitioner was granted thirty days to file an amended petition. Petitioner was

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informed that he must name as respondent the warden of the prison where he is incarcerated, and

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clarify whether he challenged his 1987 conviction, or whether he challenged a denial of parole.

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Petitioner filed an amended petition on April 11, 2011. Petitioner has again

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named the Board of Prison Terms as a respondent, rather than Rick Hill, Warden of Folsom State

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Prison. Petitioner clarified that he challenges a denial of parole, but failed to expressly state

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which parole decision he is challenging, i.e. what year the parole decision was rendered. Finally,

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petitioner has failed to confirm that he has exhausted state court remedies in connection with his

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claim that a particular denial of parole violated his constitutional rights.
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The exhaustion of state court remedies is a prerequisite to the granting of a

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petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must

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be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion,

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thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by

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providing the highest state court with a full and fair opportunity to consider all claims before

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presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

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Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).
In the amended petition, petitioner denied he has filed any petitions, applications,

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or motions with respect to this judgment in any court, state or federal. (Dkt. No. 14 at 2.)

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However, in his original petition, petitioner claimed he challenged the denial of parole in an

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unidentified “District Court,” which was denied in 2009, and that he had a petition or other post-

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conviction proceeding pending in the District Court for the Northern District of California. (Dkt.

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No. 1 at 5.) In connection to petitioner’s reference to a pending action, it is unclear whether

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petitioner was referring to the instant petition, subsequently transferred to this court, or to a

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different proceeding. In ground three of the amended petition, petitioner claims he was denied

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parole for a period of seven years in 2010. (Dkt. No. 14 at 5.) It is unclear whether petitioner is

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challenging this 2010 denial of parole, or whether petitioner could have exhausted his state court

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remedies for a 2010 parole denial by early 2011.
Petitioner is advised that he must have presented each of the grounds contained in

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the amended petition to the California Supreme Court before he may proceed in the instant

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action.
Accordingly, the amended petition will be dismissed with leave to amend. In any

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second amended petition, petitioner shall use the court’s form petition and shall include the

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following:

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1. Petitioner shall name Rick Hill, Warden, Folsom State Prison, as respondent;

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2. Petitioner shall clearly identify the date of the parole decision he challenges;
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and
3. Petitioner shall inform the court whether he has raised all three grounds

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contained in the amended petition in the California Supreme Court.
If petitioner has a copy of the parole decision he challenges, and/or a copy of the

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decision from the California Supreme Court addressing his claims, he may append them to his

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second amended petition. In order to assist petitioner in addressing the issue of exhaustion, the

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Clerk of the Court is directed to send petitioner a copy of the original petition. (Dkt. No. 1.)

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s amended application for writ of habeas corpus is dismissed with

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leave to file a second amended petition within thirty days from the date of this order;
2. The second amended petition must be filed on the form employed by this court,

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must bear the case number assigned to this action and must bear the title “Second Amended

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Petition”;
3. In the second amended petition, petitioner shall (a) name Rick Hill, Warden,

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Folsom State Prison, as respondent; (b) clearly identify the date of the parole decision he

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challenges; and (c) inform the court whether he has raised all three grounds contained in the

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amended petition in the California Supreme Court; and
4. The Clerk of the Court is directed to send petitioner the court’s form for

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application for writ of habeas corpus, and a copy of petitioner’s original petition (dkt. no. 1).

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DATED: April 15, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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till0816.114

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