Palomar v. Director of Corrections

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/29/13 granting 8 Motion to Proceed IFP. The petition is dismissed pursuant to Rule 2(e) and Rule 4 for the reasons set forth above. Petitioner is granted 30 days from the date of this order to file an amended petition. (Plummer, 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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GEORGE R. PALOMAR, II,
Petitioner,

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vs.
DIRECTOR OF CORRECTIONS,
Respondent.

ORDER
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No. 2:12-cv-2877 JAM CKD P

Petitioner is a state prisoner proceeding pro se. He seeks a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254, and has requested authority pursuant to 28 U.S.C. § 1915 to

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proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1).

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Petitioner has submitted a declaration that makes the showing required by 28

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U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

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Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254

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provides for summary dismissal of a habeas petition “[i]f it plainly appears from the face of the

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petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district

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court.” Here, petitioner has filed a petition consisting of several hundred pages and raising

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numerous issues, most of which are not cognizable on habeas review. After petitioner raised
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similar issues in a complaint filed pursuant to 42 U.S.C. § 1983 in Case No. 2:10-cv-3477 JAM

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CKD P (E.D. Cal.), the court noted in a screening order that, if petitioner wished to challenge the

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Board of Parole Hearings’ denial of parole on due process grounds, “the proper vehicle for such a

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challenge is a petition for writ of habeas corpus.” (Id., Dkt. No. 11 at 5.) Petitioner proceeded to

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file the instant petition, but did not limit his allegations to those cognizable on habeas review.

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Rule 4 dismissal is appropriate for petitioner’s various allegations concerning his conditions of

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confinement.

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Petitioner also alleges that the Board of Parole Hearings improperly denied him

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parole at his initial parole consideration hearing in 1990 and at numerous subsequent hearings.

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Petitioner may not proceed in a single federal habeas petition to challenge two or more parole

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denials. Each challenged denial must be the subject of a separate petition for habeas corpus. See

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Rule 2(e), Fed. Rules Governing § 2254 Cases; see also Magwood v. Patterson, 130 S. Ct. 2788,

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2798 (2010). Thus the petition will be dismissed and petitioner will be granted leave to file an

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amended petition properly challenging one instance of the Board’s denial of parole.

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

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1. Petitioner’s request for leave to proceed in forma pauperis is granted;

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2. The petition is dismissed pursuant to Rule 2(e) and Rule (4), for the reasons set

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forth above; and
3. Petitioner is granted thirty days from the date of this order to file an amended

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petition. Failure to timely file an amended petition will result in a recommendation that this

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action be dismissed.

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Dated: January 29, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / palo2877.Rule4

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