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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHANDRA KISHOR, 12 Petitioner, 13 14 No. 2:16-cv-2920 JAM CKD P v. ORDER AND BPHT, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 19 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 20 21 to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis will be 22 granted. See 28 U.S.C. § 1915(a). There currently exists no absolute right to appointment of counsel in habeas proceedings. 23 24 See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A 25 authorizes the appointment of counsel at any stage of the case “if the interests of justice so 26 require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not 27 find that the interests of justice would be served by the appointment of counsel at the present 28 time. 1 1 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 2 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 3 petitioner is not entitled to relief. The court has conducted that review. 4 While petitioner’s habeas petition is generally hard to understand, it appears he challenges 5 the fact that he has been denied parole. As a California prisoner serving an indeterminate 6 sentence, petitioner has a liberty interest in parole protected by the Due Process Clause of the 7 Fourteenth Amendment. Swarthout v. Cooke, 562 U.S. 216, 219-20. (2011). However, the 8 procedural protections which must be afforded with respect to the liberty interest are minimal; the 9 “Constitution does not require more” than “an opportunity to be heard” at a parole hearing and 10 that the potential parolee be “provided a statement of the reasons why parole was denied.” Id. at 11 220. Petitioner does not allege he was denied the opportunity to be heard at a parole hearing nor 12 that he was not given a statement of reasons as to why he was denied parole. 13 14 For these reasons, the court will recommend that petitioner’s petition for writ of habeas corpus be summarily dismissed. 15 Accordingly, IT IS HERBY ORDERED that: 16 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 6) is granted. 17 2. Petitioner’s request for the appointment of counsel (ECF No. 3) is denied. 18 IT IS HEREBY RECOMMENDED that: 19 1. Petitioner’s petition for writ of habeas corpus be summarily dismissed; and 20 2. This case be closed. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 26 may address whether a certificate of appealability should issue in the event he files an appeal of 27 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 28 court must issue or deny a certificate of appealability when it enters a final order adverse to the 2 1 applicant). Any response to the objections shall be served and filed within fourteen days after 2 service of the objections. The parties are advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 4 F.2d 1153 (9th Cir. 1991). 5 Dated: April 10, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 1 kish2920.par 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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