Opinion
No. 2:16-cv-0721 KJM CKD P
07-14-2016
ROBERT ROARK, Petitioner, v. RON RACKLEY, Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner's claims concern a revocation of parole occurring in 2011, and the terms imposed following the revocation. The term of parole at issue ended October 16, 2011. ECF No. 10-3 at 2, 4. Petitioner is currently serving an 8 year prison sentence entered upon a September 25, 2014 conviction for brining drugs into jail. Id. at 11-12. Respondent has filed a motion asking that petitioner's habeas petition be dismissed.
The court can "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of [federal law]." 28 U.S.C. § 2254. Petitioner fails to make any allegation suggesting, and nothing in the record before the court suggests, that the parole revocation at issue, or terms entered thereon, resulted in petitioner's present incarceration or contributed in any way to the length of his current sentence. Therefore, the court cannot "entertain" petitioner's § 2254 petition.
In light of the foregoing, the court need not address respondent's argument that petitioner's claims are time-barred.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss (ECF No. 10) be granted;
2. Petitioner's petition for writ of habeas corpus (ECF No. 1) be dismissed; and
3. This case be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: July 14, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 1 roar0721.157