Forbes v. Board of Prison Terms

Full title: HOWARD FORBES, Petitioner, v. BOARD OF PRISON TERMS, et al., Respondents

Court: United States District Court, E.D. California

Date published: Aug 29, 2006

No. 2:06-cv-1187-MCE-GGH-P (E.D. Cal. Aug. 29, 2006)

Opinion

No. 2:06-cv-1187-MCE-GGH-P.

August 29, 2006

ORDER

MORRISON ENGLAND JR., District Judge

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On June 28, 2006, the magistrate judge filed findings and recommendations herein which were served on petitioner and which contained notice to petitioner that any objections to the findings and recommendations were to be filed within twenty days. Petitioner has filed objections to the findings and recommendations.

The gravamen of this action is petitioner's claim that the Board of Prison Terms violated the terms of Valdivia v. Schwarzenneger, CIV S-94-0671 LKK GGH P during petitioner's parole revocation proceedings. The magistrate judge recommended that this action be dismissed based on petitioner's failure to exhaust state court remedies. In his objections, petitioner states that the Solano County Superior Court denied his petition on grounds that petitioner was required to present his claims in Validivia, supra. See Superior Court order attached to objections. Petitioner argues that no further state court remedies are available based on the Superior Court's order.

Despite the Superior Court's order, petitioner may still file a habeas corpus petition in the California Supreme Court raising the claims raised in the instant action. This action is distinguishable from Swoopes v. Sublett, 196 F.3d 1008 (9^th Cir. 1999). In Swoopes, the Ninth Circuit found that Arizona prisoners were not required to seek discretionary post-conviction review with the Arizona Supreme Court in order to exhaust state court remedies. Because the Arizona Supreme Court had held that a decision by the Arizona Court of Appal exhausted a defendant's right of appeal, post-conviction review before the Arizona Supreme Court was not an available remedy. 196 F.3d at 1009. In contrast, the California Supreme Court has not held that no further review is available beyond the denial of a habeas petition by a California Superior Court.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed June 28, 2006, are adopted in full;

2. Petitioner's application for a writ of habeas corpus is dismissed for failure to exhaust state remedies.