Tillman v. Board of Parole Hearings

Filing 9

ORDER signed by Magistrate Judge Gregory G. Hollows on 08/06/14 ordering petitioner's application for a writ of habeas corpus is dismissed. A certificate of appealability should not issue in this action. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY TILLMAN,

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Petitioner,

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No. 2:14-cv-0615 GGH P

ORDER1

v.
THE BOARD OF PAROLE HEARINGS,

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Respondent.

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Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges various decisions by the California Board of Parole Hearings (BPH)

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finding him unsuitable for parole in regard to his underlying 1985 conviction, as well as other

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claims. Before the court is petitioner’s second amended petition, filed June 2, 2014. By orders of

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April 4 and May 27, 2014, petitioner was informed of the deficiencies in his petition, and directed

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to file an amended petitions. The second amended petition, filed June 2, 2014, does nothing more

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than repeat excerpts from the latest order verbatim as grounds for relief, and is therefore

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frivolous.

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Petitioner consented to the undersigned as presiding judge pursuant to 28 U.S.C. § 636 (c).
Respondent has not, and will not be served herein. Therefore, this case will be finally decided by
the undersigned.
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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court ....“ Rule 4, Rules Governing Section 2254 Cases; see also

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White v. Lewis, 874 F.2d 599, 602–03 (9th Cir.1989) (meritorious motions to dismiss permitted

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under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly

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allows a district court to dismiss summarily the petition on the merits when no claim for relief is

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stated”). However, a petition for writ of habeas corpus should not be dismissed without leave to

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amend unless it appears that no tenable claim for relief can be pleaded were such leave granted.

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Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). “Summary dismissal is appropriate only where

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the allegations are vague [or] conclusory or palpably incredible, ... or patently frivolous or false.”

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (internal quotations and citations

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omitted).

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The four grounds for relief set forth in the second amended petition merely repeat

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instructions taken directly from the court’s previous order. For example, as Ground One, the

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petition states: “The petitioner is confusing in stating that he is twelve years past his parole

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hearing in 2002, 2004, 2006, 2008, and 2010, but elsewhere stating that he did not get a fair

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hearing.” (ECF No. 8 at 4) (quoting Order, filed May 27, 2014, at 4:16-18). As Ground Two, the

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petition states: “Petitioner states that the attorney misled him into believing he was an A.D.H.

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attorney and familiar with petitioner’s condition, but later rev[e]aled he was not.” (Id. at 4)

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(quoting Order at p. 1:25-27). Petitioner also repeats quotations from the order as his enumerated

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Grounds Three and Four.

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After being given three opportunities to file a petition, and despite receiving specific and

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detailed instructions in two orders, it is clear that petitioner has been unable to cure the defects in

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his allegations, and providing him with further opportunities would not be productive. This

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appears to be one of those relatively rare cases when to grant petitioner further leave to amend

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would be patently futile. Therefore, the petition is dismissed for the reasons stated here and for

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the reasons explained in the court’s two previous orders.

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/////
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Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must

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issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A

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certificate of appealability may issue only “if the applicant has made a substantial showing of the

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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth herein, a

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substantial showing of the denial of a constitutional right has not been made in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application for a writ of habeas corpus is dismissed; and

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2. A certificate of appealability should not issue in this action.

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Dated: August 6, 2014

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Till0615.parole.scrnII.dis

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