Hardney v. Virga

Filing 16

ORDER signed by Judge John A. Mendez on 10/22/2014 ADOPTING 15 Findings and Recommendations in full. Federal habeas relief is DENIED as to petitioner's due process claim, his ineffective assistance of counsel claim, and his claim that the Cali fornia Board of Parole Hearings violated its own policy in deferring his next parole suitability hearing for ten years. Petitioner's claim that his rights under the Ex Post Facto Clause were violated is DISMISSED without prejudice to any relief that may be available to petitioner as a member of the class in Gilman v. Fisher. The court DECLINES to issued a Certificate of Appealability. CASE CLOSED.(Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN HARDNEY,

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No. 2:13-cv-0754 JAM DAD P

Petitioner,
v.

ORDER

T. VIRGA, Warden,

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Respondents.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 8, 2014, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Neither party has filed

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objections to the findings and recommendations.

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The court has reviewed the file and finds the findings and recommendations to be

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supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY

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ORDERED that:

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1. The findings and recommendations filed August 8, 2014, are adopted in full;

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2. Federal habeas relief is denied as to petitioner’s due process claim, his ineffective
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assistance of counsel claim, and his claim that the California Board of Parole Hearings (Board)

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violated its own policy in deferring his next parole suitability hearing for ten years;

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3. Petitioner’s claim that his rights under the Ex Post Facto Clause were violated by the

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Board’s 2011 decision to defer his next parole consideration hearing for a period of ten years is

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dismissed without prejudice to any relief that may be available to petitioner as a member of the

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class in Gilman v. Fisher, 05-0830 LKK GGH P; and

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4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. §

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2253.

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DATED: October 22, 2014

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/s/ John A. Mendez_______________________

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UNITED STATES DISTRICT COURT JUDGE

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