Green v. Lizaraga
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/4/2017 RECOMMENDING petitioner's 1 application for writ of habeas corpus be summarily dismissed. Referred to Judge Morrison C. England, Jr.; 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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VENCIL C. GREEN,
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No. 2:17-cv-704-MCE-EFB P
Petitioner,
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v.
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J. LIZARAGA,
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FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to
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28 U.S.C. § 2254.1 He is serving an indeterminate life sentence and seeks a new parole suitability
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hearing on the grounds that he was denied due process at his October 14, 2015 parole suitability
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hearing, which resulted in a seven year denial of parole. See ECF No. 1.
Under Rule 4 of the Rules Governing Section 2254 Cases, the court is required to conduct
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a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. The court
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must summarily dismiss a petition if it “plainly appears . . . that the petitioner is not entitled to
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relief . . . .” The court has conducted the review required under Rule 4 and concludes that
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summary dismissal of the petition is required.
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Petitioner has paid the filing fee.
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A prisoner’s claim which, if successful, would not necessarily lead to immediate or
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speedier release falls outside the “core of habeas corpus” and must be pursued in an action
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brought pursuant to 42 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016). Here,
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success on petitioner’s claim could result in advancing the date of his next parole suitably
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hearing. It would not, however, necessarily lead to his immediate or speedier release. For this
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reason, the petition for a writ of habeas corpus must be summarily dismissed without prejudice to
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filing a new action pursuant to 42 U.S.C. § 1983.
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Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for writ of
habeas corpus be summarily dismissed.
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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.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. Failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
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1991). In his objections petitioner may address whether a certificate of appealability should issue
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in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
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Section 2254 Cases in the United States District Courts (the district court must issue or deny a
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certificate of appealability when it enters a final order adverse to the applicant).
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DATED: October 4, 2017.
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