Roach v. Hill

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 11/1/12: Recommending that petitioner's sixth claim for relief be dismissed as moot. The Clerk of the Court be directed to enter judgment and the district court decline to issue a certificate of appealability.F&R referred to Judge Kimberly J. Mueller. Objections to F&R due within fourteen days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROY ROACH,

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Petitioner,

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vs.

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No. 2:11-cv-2286 KJM JFM P

R. HILL,Warden,

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Respondent.

FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner proceeding pro se with an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of nineteen years to

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life in prison following his 1988 conviction on charges of second degree murder and robbery.

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Petitioner challenges on several grounds a 2009 decision of the California Board of Parole

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Hearings (Board) to deny him a parole date for a period of three years.

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On August 8, 2012, this court issued findings and recommendations

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recommending dismissal of all claims except petitioner’s sixth claim for relief, in which

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petitioner contends that the application of Proposition 9, sometimes called Marsy’s Law, at the

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2009 hearing violated the Ex Post Facto Clause of the United States Constitution. With respect

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to that claim, the parties were ordered to show cause in writing within fifteen days why that claim

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should not be dismissed as moot. By order filed September 10, 2012, petitioner was granted an

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additional period of thirty days in which to respond to the order to show cause. On September

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26, 2012, the district court adopted the findings and recommendations in full and remanded the
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matter to this court for findings and recommendations on whether petitioner’s sixth claim for

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relief is moot and whether the district court should issue a certificate of appealability.

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Neither party has responded to the order to show cause. The record reflects that

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the Board of Prison Hearings (BPH) denied petitioner parole for a period of three years on May

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26, 2009, and that decision became final on September 28, 2009. The three year denial is the

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basis for petitioner’s Ex Post Facto Clause claim. See Petition, filed August 29, 2011, at 52-54.

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More than three years have passed since the challenged decision because final. A case is moot

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where no effective relief is available to a party. See Doe No. 1 v. Reed,

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5200354 (9th Cir. Oct. 23, 2012), slip op. at 2. No effective relief remains available on this claim.

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F.3d

, 2012 WL

For that reason, it should be dismissed as moot.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United

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States District Courts, “[t]he district court must issue or a deny a certificate of appealability when

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it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of

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appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either

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issue a certificate of appealability indicating which issues satisfy the required showing or must

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state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons

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set forth in this court’s August 8, 2012 findings and recommendations petitioner has not made a

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substantial showing of the denial of a constitutional right in seven of his eight claims for relief.

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Moreover, for the reasons set forth in these findings and recommendations his sixth claim for

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relief is moot. Accordingly, no certificate of appealability should issue.

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In accordance with the above, IT IS HEREBY RECOMMENDED that

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1. Petitioner’s sixth claim for relief be dismissed as moot;

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2. The Clerk of the Court be directed to enter judgment in this action in

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accordance with the district court’s September 26, 2012 order and any order by the district court

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adopting these findings and recommendations; and
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3. The district court decline to issue a certificate of appealability.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: November 1, 2012.

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