Green v. The State of California Board of Parole Hearings
Filing
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ORDER (1) ADOPTING 16 REPORT AND RECOMMENDATION; (2) granting Respondent's 9 Motion to Dismiss; and (3) denying Certificate of Appealability: This Order concludes the litigation in this matter. The Clerk shall close the file. Signed by Judge Janis L. Sammartino on 8/29/11.(All non-registered users served via U.S. Mail Service)(lmt)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DONALD GREEN,
CASE NO. 10-CV-2516 JLS (JMA)
Petitioner,
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ORDER: (1) ADOPTING REPORT
AND RECOMMENDATION;
(2) GRANTING RESPONDENT’S
MOTION TO DISMISS; AND
(3) DENYING CERTIFICATE OF
APPEALABILITY
vs.
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THE STATE OF CALIFORNIA BOARD OF
PAROLE HEARINGS; MATTHEW CATE,
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Respondents.
(ECF Nos. 9, 16)
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Presently before the Court is Petitioner Donald Green’s petition for writ of habeas corpus.
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(ECF No. 1.) Also before the Court are Respondent Matthew Cate’s1 motion to dismiss (ECF No. 9)
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and Magistrate Judge Jan M. Adler’s report and recommendation advising the Court to grant
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Respondent’s motion and dismiss the petition without prejudice to Petitioner bringing his claim under
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42 U.S.C. § 1983 (R&R, ECF No. 16).
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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court’s
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duties in connection with a magistrate judge’s report and recommendation. The district court must
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“make a de novo determination of those portions of the report to which objection is made,” and “may
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accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
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On July 26, 2011, Matthew Cate, Secretary of the California Department of Corrections and
Rehabilitation, was substituted as Respondent in place of “L.S. McEwen.” (ECF No. 17.)
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judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980);
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United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely
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objection, the Court “need only satisfy itself that there is no clear error on the face of the record in
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order to accept the report and recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing
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Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United States v. Reyna-
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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(“[T]he district judge must review the magistrate judge’s
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findings and recommendations de novo if objection is made, but not otherwise.”).
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Here, Petitioner failed to timely object to Magistrate Judge Adler’s report and
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recommendation. (See R&R 6 (ordering parties to file objections “not later than August 16, 2011”).)
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Having reviewed the report and recommendation, the Court finds that it is thorough, well reasoned,
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and contains no clear error. Accordingly, the Court (1) ADOPTS Magistrate Judge Adler’s report and
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recommendation, (2) GRANTS Respondent’s motion to dismiss, and (3) DISMISSES the petition
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WITHOUT PREJUDICE to Petitioner bringing his claim under 42 U.S.C. § 1983.
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The Court is obliged to determine whether a certificate of appealability should issue in this
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matter. See Fed. R. App. P. 22(b). A certificate of appealability is authorized “if the applicant has
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made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
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petitioner satisfies this standard by showing that “reasonable jurists” would debate the Court’s
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assessment of the constitutional claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where, as
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here, the petition is dismissed on procedural grounds, a certificate of appealability “should issue when
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the petitioner shows, at least, [1] that jurists of reason would find it debatable whether the petition
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states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it
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debatable whether the district court was correct in its procedural ruling.” Id.
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Here, the Court concludes that reasonable jurists would neither debate that the petition fails
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to state a valid constitutional claim nor debate the propriety of the Court’s procedural ruling. Because
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Petitioner does not challenge the duration of his confinement, he fails to establish subject matter
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jurisdiction for federal habeas relief. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003)
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(“[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison
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condition will not necessarily shorten the prisoner's sentence.”). Moreover, Petitioner fails to allege
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facts to establish that he was deprived of his liberty interest in parole, see Roberts v. Hartley, 640 F.3d
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1042, 1046 (9th Cir. 2011) (citing Swarthout v. Cooke, — U.S. —, 131 S. Ct. 859, 862 (2011)), and
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his contention that the state misapplied its own regulatory law is not a cognizable ground for federal
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habeas relief, see Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Accordingly, the Court DENIES
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a certificate of appealability.
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This Order concludes the litigation in this matter. The Clerk shall close the file.
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IT IS SO ORDERED.
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DATED: August 29, 2011
Honorable Janis L. Sammartino
United States District Judge
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