Allen v. Hoshino

Filing 7

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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 EUGENE ALLEN, Petitioner, 8 9 vs. MARTIN HOSHINO, Chairman, Board of Parole Hearings, ORDER DISMISSING PETITION FOR FAILURE TO EXHAUST 11 For the Northern District of California United States District Court 10 No. C 11-1869 PJH (PR) Respondent. 12 13 14 15 / 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 16 where petitioner is confined. See 28 U.S.C. § 2241(d). 17 BACKGROUND 18 Petitioner was convicted in 1972 of first degree murder. He was sentenced to prison 19 for seven years to life. This petition is directed to a denial of parole on November 30, 2010. 20 DISCUSSION 21 Petitioner asserts that two federal judges, one from this district and one from the 22 Eastern District, in 2007 announced that they would “soon set up a two judge panel to 23 begin presiding over parole hearings . . . ,” because of persistent due process violations by 24 the Board of Parole Hearings. Pet. at 7. He says that the panel was not instituted only 25 because the BPH promised to mend its ways, that it has not done so, and that his hearing 26 violated due process. He concedes in the petition that he has not presented his claim to 27 the state courts, but asserts that he is not required to because he is asking for “a parole 28 hearing in front of a Judge panel. . . ,” and only a federal court can order that. Pet. at 8. 1 The court is not aware of the “two judge panel” proposal to which petitioner refers, 2 but in any event he concedes it was never implemented, so it is irrelevant here. What is 3 relevant here is that the court cannot grant habeas relief of any sort unless petitioner has 4 first exhausted his constitutional claims by presenting them to the highest state court 5 available. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). 6 This petitioner concedes he has not done. The petition must be dismissed. 7 CONCLUSION 8 The petition is DISMISSED. Petitioner’s motion for an order transferring him to 9 DENIED as moot. 11 For the Northern District of California United States District Court 10 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 12 certificate of appealability (“COA”) is DENIED. See Rule 11(a), Rules Governing § 2254 13 Cases, 28 U.S.C. foll. § 2254; see also 28 U.S.C. § 2253(c) (COA requirement); Slack v. 14 McDaniel, 529 U.S. 473, 483 (2000) (standard). Petitioner is advised that he cannot appeal 15 the denial of a COA, but he may ask the court of appeals to issue a COA under Rule 22 of 16 the Federal Rules of Appellate Procedure. See Rule 11(a), Rules Governing § 2254 17 Cases. 18 The clerk shall close the file. 19 IT IS SO ORDERED. 20 Dated: November 14, 2011. PHYLLIS J. HAMILTON United States District Judge 21 22 23 24 25 26 27 P:\PRO-SE\PJH\HC.11\ALLEN1869.DSM-EXH.wpd 28 2

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