Opinion
No. CIV S-07-0251-GEB-CMK-P.
October 31, 2007
ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On May 18, 2007, respondents filed a motion to dismiss this petition pursuant to 28 U.S.C. § 2244(b)(1) as an impermissible successive petition. Specifically, respondents pointed to another petition filed by petitioner and currently pending as case no. CIV-S-06-2937-FCD-GGH. In findings and recommendations issued on August 17, 2007, the court determined that the instant petition was not successive within the meaning of § 2244 because the 2006 petition had not yet been resolved on the merits. The court, however, agreed with respondents' contention that the two petitions raised the same claims. Therefore, the court recommended dismissing the 2007 petition as duplicative of the 2006 petition.
Upon further review of the two petitions at issue, the court now concludes that the 2007 petition is not duplicative. In the instant petition, petitioner raises the following claims:
1. The denial of parole in 2005 was "arbitrary and unfounded" because the facts do not establish that petitioner is a present danger to the community;
2. The denial of parole in 2005 was not based on "some evidence" because evidence showing parole suitability was not taken into account;
3. The continued reliance on the facts of the commitment offense to deny parole violated due process; and
4. There is no evidence that petitioner's social history is unstable.
For relief, petitioner states that he is "entitled to be granted a parole date." In the 2006 petition, which also challenges the denial of parole in 2005, petitioner raises various claims concerning the procedures employed by the State of California and its officials to deny parole. For relief, petitioner seeks an injunction barring state officials from following an alleged "no parole" policy.
Because the two petitions raise different sets of claims, the court finds it appropriate to vacate the August 17, 2007, findings and recommendations. By separate amended findings and recommendations, the court will recommend that respondents' motion to dismiss be denied and that respondents be directed to file an answer to the 2007 petition on the merits.
Accordingly, IT IS HEREBY ORDERED that the findings and recommendations issued on August 17, 2007, are vacated.