Kishor v. BPHT

Filing 13

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/10/2017 GRANTING petitioner's 6 request to proceed IFP ; and DENYING petitioner's 3 request for appointment of counsel. IT IS RECOMMENDED that petitioner's petition for writ of habeas corpus be summarily dismissed; and this case be closed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHANDRA KISHOR,

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Petitioner,

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No. 2:16-cv-2920 JAM CKD P

v.

ORDER AND

BPHT,

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FINDINGS AND RECOMMENDATIONS
Respondent.

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

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

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pursuant to 28 U.S.C. § 1915 and a request for the appointment of counsel.
Examination of the request to proceed in forma pauperis reveals that petitioner is unable

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to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).
There currently exists no absolute right to appointment of counsel in habeas proceedings.

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See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A

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authorizes the appointment of counsel at any stage of the case “if the interests of justice so

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require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not

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find that the interests of justice would be served by the appointment of counsel at the present

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time.
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Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all

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petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the

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petitioner is not entitled to relief. The court has conducted that review.

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While petitioner’s habeas petition is generally hard to understand, it appears he challenges

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the fact that he has been denied parole. As a California prisoner serving an indeterminate

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sentence, petitioner has a liberty interest in parole protected by the Due Process Clause of the

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Fourteenth Amendment. Swarthout v. Cooke, 562 U.S. 216, 219-20. (2011). However, the

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procedural protections which must be afforded with respect to the liberty interest are minimal; the

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“Constitution does not require more” than “an opportunity to be heard” at a parole hearing and

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that the potential parolee be “provided a statement of the reasons why parole was denied.” Id. at

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220. Petitioner does not allege he was denied the opportunity to be heard at a parole hearing nor

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that he was not given a statement of reasons as to why he was denied parole.

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For these reasons, the court will recommend that petitioner’s petition for writ of habeas
corpus be summarily dismissed.

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Accordingly, IT IS HERBY ORDERED that:

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1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 6) is granted.

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2. Petitioner’s request for the appointment of counsel (ECF No. 3) is denied.

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IT IS HEREBY RECOMMENDED that:

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1.

Petitioner’s petition for writ of habeas corpus be summarily dismissed; and

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2.

This case be closed.

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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 28 U.S.C. § 636(b)(l). Within fourteen days

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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.” In his objections petitioner

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may address whether a certificate of appealability should issue in the event he files an appeal of

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the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district

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court must issue or deny a certificate of appealability when it enters a final order adverse to the
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applicant). Any response to the objections shall be served and filed within fourteen days after

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service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: April 10, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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