Opinion
Case No. 04 CV 2487 JM (NLS).
September 23, 2005
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the decision by California Governor Arnold Schwarzenegger to deny his request for parole. On July 13, 2005, United States Magistrate Judge Nita L. Stormes issued a Report and Recommendation ("RR") recommending Medway's petition be dismissed with prejudice. Petitioner filed objections on August 8, 2005. For the reasons set forth below, the court overrules Petitioner's objections and wholly adopts the conclusions and findings contained in the RR incorporated by reference herein.
The duties of the district court in connection with a Magistrate Judge's RR are set forth in the Federal Rules of Civil Procedure Rule 72(b) and 28 U.S.C. § 636. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made, and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1);United States v. Raddatz, 447 U.S. 667, 676 (1980). Having conducted a de novo review of the papers submitted, the court finds the RR presents a thorough and sound analysis of the issues raised by the parties.
In his objections, Petitioner calls attention to two recent cases in which the district court granted the petition for writ of habeas corpus in response to a denial of parole. The first case, Masoner v. State, No. 03-1261, 2004 U.S. Dist. LEXIS 9221 (C.D.Cal. Jan. 23, 2004), was decided prior to the California Supreme Court's decision in In re Dannenberg, 34 Cal.4th 1061 (2005). As Judge Stormes stated, Dannenberg concluded that the state parole statute did not contain mandatory language that created a right to parole in California. Because Masoner could not consider Dannenberg, it is not persuasive here. Petitioner also cites Coleman v. Board of Prison Terms, No. 96-0783 (E.D.Cal. May 19, 2005). Although Coleman was decided afterDannenberg, the court did not refer to it in its analysis and still stated that California prisoners do have a protected liberty interest in release on parole. Moreover, Coleman declares that the "some evidence" standard does not satisfy federal due process, a finding that is itself contrary to established precedent. See Superintendent v. Hill, 472 U.S. 445 (1985); Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003). The RR by Judge Stormes properly found that Petitioner was not denied due process. Therefore, the court concludes that the petition for writ of habeas corpus be denied for the reasons set forth in the RR.
For the foregoing reasons, the court adopts in whole the findings and conclusion contained in the Report and Recommendation, which is incorporated herein by reference. Accordingly, the court denies Petitioner's petition for writ of habeas corpus.
IT IS SO ORDERED.