Allen v. Hoshino
Filing
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ORDER DISMISSING PETITION FOR FAILURE TO EXHAUST, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 11/14/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/14/2011)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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EUGENE ALLEN,
Petitioner,
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vs.
MARTIN HOSHINO, Chairman, Board
of Parole Hearings,
ORDER DISMISSING
PETITION FOR FAILURE TO
EXHAUST
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For the Northern District of California
United States District Court
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No. C 11-1869 PJH (PR)
Respondent.
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Petitioner, a California state inmate, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He has paid the filing fee.
The petition attacks denial of parole, so venue is proper in this district, which is
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where petitioner is confined. See 28 U.S.C. § 2241(d).
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BACKGROUND
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Petitioner was convicted in 1972 of first degree murder. He was sentenced to prison
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for seven years to life. This petition is directed to a denial of parole on November 30, 2010.
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DISCUSSION
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Petitioner asserts that two federal judges, one from this district and one from the
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Eastern District, in 2007 announced that they would “soon set up a two judge panel to
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begin presiding over parole hearings . . . ,” because of persistent due process violations by
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the Board of Parole Hearings. Pet. at 7. He says that the panel was not instituted only
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because the BPH promised to mend its ways, that it has not done so, and that his hearing
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violated due process. He concedes in the petition that he has not presented his claim to
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the state courts, but asserts that he is not required to because he is asking for “a parole
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hearing in front of a Judge panel. . . ,” and only a federal court can order that. Pet. at 8.
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The court is not aware of the “two judge panel” proposal to which petitioner refers,
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but in any event he concedes it was never implemented, so it is irrelevant here. What is
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relevant here is that the court cannot grant habeas relief of any sort unless petitioner has
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first exhausted his constitutional claims by presenting them to the highest state court
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available. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987).
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This petitioner concedes he has not done. The petition must be dismissed.
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CONCLUSION
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The petition is DISMISSED. Petitioner’s motion for an order transferring him to
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DENIED as moot.
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For the Northern District of California
United States District Court
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Marin County to prepare for a new parole hearing (document number 3 on the docket) is
Because reasonable jurists would not find the court’s ruling debatable or wrong, a
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certificate of appealability (“COA”) is DENIED. See Rule 11(a), Rules Governing § 2254
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Cases, 28 U.S.C. foll. § 2254; see also 28 U.S.C. § 2253(c) (COA requirement); Slack v.
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McDaniel, 529 U.S. 473, 483 (2000) (standard). Petitioner is advised that he cannot appeal
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the denial of a COA, but he may ask the court of appeals to issue a COA under Rule 22 of
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the Federal Rules of Appellate Procedure. See Rule 11(a), Rules Governing § 2254
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Cases.
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The clerk shall close the file.
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IT IS SO ORDERED.
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Dated: November 14, 2011.
PHYLLIS J. HAMILTON
United States District Judge
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P:\PRO-SE\PJH\HC.11\ALLEN1869.DSM-EXH.wpd
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