Ontiveros v. Knipp
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/15/11 RECOMMENDING that re 1 Petition for Writ of Habeas Corpus be summarily dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(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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EDWARD ONTIVEROS,
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No. CIV S-11-2945-MCE-CMK-P
Petitioner,
vs.
FINDINGS AND RECOMMENDATIONS
KNIPP,
Respondent.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole. Pending before the
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court is petitioner’s petition for a writ of habeas corpus (Doc. 1).
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Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary
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dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any
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exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the
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instant case, it is plain that petitioner is not entitled to federal habeas relief. Petitioner claims that
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the denial of parole under “Marsy’s Law” for a longer period than allowed under the law at the
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time he was convicted constitutes a prohibited ex post facto law. This claim has been foreclosed
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by the Ninth Circuit. See Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011).
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Based on the foregoing, the undersigned recommends that petitioner’s petition for
a writ of habeas corpus (Doc. 1) be summarily dismissed.
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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 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: November 15, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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