Grandinetti v. Macadamia et al

Filing 4

DISMISSAL ORDER. Signed by JUDGE HELEN GILLMOR on 4/29/2013. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on 5/1/2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

FRANCIS A. GRANDINETTI,
#A0185087,

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Petitioner,
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vs.
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JESSIE MACADAMIA, et al.,
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Respondents.
_____________________________ )

CIV. NO. 13-00189 HG/BMK
DISMISSAL ORDER

DISMISSAL ORDER
Petitioner Francis A. Grandinetti, who is confined in
the Saguaro Correctional Center (“SCC”), has filed another
Petition for Writ of Habeas Corpus by a Person in State Custody
under 28 U.S.C. § 2254.

Petitioner appears to challenge parole

proceedings that were scheduled to take place four days after he
completed and signed this Petition.
The Petition is largely incoherent.

Petitioner alleges

that the Hawaii Paroling Authority (“HPA”) failed to correctly
process notices of his parole hearings or investigate his state
convictions in criminal numbers 88-CR-2074 and 93-CR-0141.
Petitioner attaches numerous HPA notices, grievances, and his own
letters.

These exhibits clearly show that he received numerous

HPA notices of hearings, and for various reasons he declined to
attend.

Because the most recent hearing was scheduled to take

place after he filed this action, its outcome is unclear.

Rule 4 of the Rules Governing Habeas Corpus Cases Under
Section 2254 states that a district judge “must dismiss” a habeas
petition “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief.”
Summary dismissal is appropriate when the petition is “patently
frivolous or false.”

Hendricks v. Vasquez, 908 F.2d 490, 491

(9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 76
(1977)).
The Petition is patently frivolous and must be
dismissed.

See Mayle v. Felix, 545 U.S. 644, 669-70 (2005) (“the

purpose of the heightened pleading standard in habeas cases is to
help a district court weed out frivolous petitions before calling
upon the State to answer”).

First, to the extent Petitioner

complains about an April 19, 2013, parole proceeding, the
Petition is premature because it was signed and mailed before
that date.

Moreover, Petitioner’s exhibits make clear that he

received notice of his earlier parole hearings and refused to
attend them.
Second, Petitioner has no “right to be conditionally
released before the expiration of a valid sentence” under federal
law, see Swarthout v. Cooke, 562 U.S. ––––, 131 S. Ct. 859, 862
(2011) (per curiam); Greenholtz v. Nebraska, 442 U.S. 1, 7
(1979), and Hawaii’s parole statute does not create a liberty
interest in parole.

See, e.g., Mujahid v. Apao, 795 F. Supp.

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1020, 1024 (D. Haw. 1992) (“[A] proper application of Greenholtz
requires the court to conclude that the Hawaii parole statute
does not create a liberty interest protected by the Due Process
Clause.”).

If he complains that he has been denied parole, that

claim is foreclosed.
Finally, the court dismissed as time-barred an earlier
habeas petition by Petitioner, see Civ. No. 05-00254 DAE, and the
Ninth Circuit Court of Appeals denied a certificate of
appealability.

If Petitioner is challenging his 1988 and/or 1993

convictions, rather than the outright denial of parole or
perceived infirmities in the parole process, this Petition may be
second or successive, and Petitioner may need permission from the
Ninth Circuit to file it.

See 28 U.S.C. § 2244(b); Cooper v.

Calderon, 274 F.3d 1270, 1273–74 (9th Cir. 2001).

Petitioner

provides no evidence that he sought or received such permission,
or that the present matter could not have been included in the
earlier case or involves a separate conviction.
To the extent Petitioner seeks a certificate of
appealability or in forma pauperis status, they are DENIED and
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the Petition is DISMISSED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 29, 2013.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Grandinetti v. Macadamia, et al., 1:13-cv-00189 HG/RLP;
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