Olic v. Lizaraga
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/27/15 RECOMMENDING that Respondents motion to dismiss, filed July 17, 2015 (ECF No. 32 ), be granted; and the District Court decline to issue a certificate of appealability. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MILORAD OLIC,
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No. 2:14-cv-2120 KJM GGH P
Petitioner,
v.
WARDEN JOE A. LIZARRAGA,
FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On October 7, 2015, petitioner was ordered to show cause, within twenty-one days, why
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respondent’s July 17, 2015 motion to dismiss should not be granted. At that time, petitioner was
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warned that failure to file an opposition would result in a recommendation that this action be
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dismissed. The twenty-one day period has now expired, and petitioner has not shown cause or
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otherwise responded to the court’s order. Although petitioner was granted an extension of time to
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file an opposition, he failed to do so. The court also responded to petitioner’s requests for his
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legal property, including one such request after the motion to dismiss was filed, requiring the
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prison to respond, which it did to the court’s satisfaction.
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In addition, the court has reviewed the motion to dismiss for failure to state a claim for
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habeas relief. The court finds that on the face of it, the motion has merit. Petitioner’s claim is
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that his Fourth Amendment rights were violated by random urinalysis testing as part of a
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mandatory standardized drug testing program, resulting in thirty days loss of credits. Because
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petitioner is serving an indeterminate sentence of thirteen years to life, under Nettles v. Grounds,
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788 F.3d 992, 1000 (9th Cir. 2015), an order restoring thirty days of behavior credits is too
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speculative to meet the standard set forth in Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289
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(2011). After examining the Supreme Court's decision in Skinner, the Ninth Circuit clarified that
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“in cases involving challenges to prison disciplinary proceedings, the writ of habeas corpus
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extends only to claims that, if successful, will ‘necessarily spell speedier release.’” Nettles, 788
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F.3d at 1001 (quoting Skinner, 562 U.S. at 535). As in Nettles, petitioner's indeterminate
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sentence bears on this finding: this court could only speculate what effect, if any, a prison rules
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violation conviction suffered in 2014, with petitioner only three years into an indeterminate
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sentence of thirteen years to life imprisonment, will have on his possible parole eligibility in the
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distant future.
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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 in these
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findings and recommendations, a substantial showing of the denial of a constitutional right has
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not been made in this case.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. Respondent’s motion to dismiss, filed July 17, 2015 (ECF No. 32), be granted; 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 Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
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(14) 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 reply to the objections
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shall be served and filed within seven (7) days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 199
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DATED: November 27, 2015
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/s/ Gregory G. Hollows
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UNITED STATES MAGISTRATE JUDGE
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GGH:076/Olic2120.fr
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