Hyde v. Salinas

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 4/30/2012 ORDERING that petitioner's 2 request to proceed in forma pauperis is GRANTED. IT IS HEREBY RECOMMENDED that Petitioner's application for a writ of habeas corpus be summarily dismissed. The district court decline to issue a certificate of appealability. Referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Zignago, 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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PAUL E. HYDE,
Petitioner,

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No. 2:12-cv-0298 JAM JFM (HC)

vs.
S. M. SALINAS, Warden,

ORDER AND

Respondent.

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FINDINGS AND RECOMMENDATIONS
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma

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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 filed an amended petition as of right on February 14, 2012. See Fed. R.

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Civ. P. 15; Rule 12, 28 U.S.C. foll. § 2254. In his petition, petitioner alleges that he was

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sentenced to state prison under California’s Indeterminate Sentencing Law (ISL), which has now

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been replaced by California’s Determinate Sentencing Law (DSL). Petitioner alleges that

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application to him of current parole regulations violates his right to due process and the
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prohibition against ex post facto laws. Petitioner’s claim is foreclosed by Connor v. Estelle, 981

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F.2d 1032 (9th Cir. 1992). In Connor, the court of appeals held neither the ex post facto clause of

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the United Constitution nor its due process clause were violated by application to ISL inmates of

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parole regulations implemented following enactment of the DSL.
Rule 4 of the Habeas Rules authorizes a judge to summarily dismiss a habeas

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petition “[i]f it plainly appears from the petition and any exhibits annexed to it that the petitioner

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is not entitled to relief in the district court.” Rule 4, 28 U.S.C. foll. § 2254. For the reasons set

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forth supra, it is plain that petitioner is not entitled to relief. For that reason, his application for a

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writ of habeas corpus should be summarily dismissed.
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 order, petitioner has not made a substantial showing of the denial of a

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constitutional right. Accordingly, the district court should not issue a certificate of appealability.
In accordance with the above, IT IS HEREBY ORDERED that petitioner’s

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request to proceed in forma pauperis is granted; and

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IT IS HEREBY RECOMMENDED that

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1. Petitioner’s application for a writ of habeas corpus be summarily dismissed;

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and

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2. 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: April 30, 2012.

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