1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVON DWELDON BRAZIL,

Petitioner, No. CIV-S-04-1357 FCD KJM P 

vs.

THOMAS L. CAREY, et al., 

Respondents. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding pro se with an application for writ of

habeas corpus under 28 U.S.C. section 2254. Petitioner is currently serving a sentence of fifteenyears-to-life imprisonment for second degree murder, with a two-year enhancement under

California Penal Code section 12022.5. Petitioner was convicted in Los Angeles County in 1983. 

Petitioner challenges the execution of his sentence. 

Respondents have moved to dismiss asserting petitioner has failed to “state a

cause of action.” Mot. to Dismiss (Mot.) at 8. Rule 4 of the Rules Governing section 2254 cases

allows a district court to dismiss a habeas petition where no claim for relief is stated. O’Bremski

v. Maass, 915 F.2d 418, 420 (9th Cir. 1990).

Essentially, petitioner asserts that his Fourteenth Amendment rights have been

violated by California Department of Corrections (CDC) officials due to the manner in which

Case 2:04-cv-01357-FCD-KJM Document 10 Filed 06/30/05 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 Petitioner seems to believe that his sentence is really determinate. See, e.g., Opp’n

at 9-10. But the record is clear that he was sentenced by the state trial court to a term of

fifteen-years-to-life, plus an additional two years. Mot., Ex. A. Even after California’s

“Determinate Sentence Law” took effect in 1977, certain crimes have remained punishable by

indeterminate sentences, and petitioner’s term, “by its nature [is] an indeterminate term.” See In

re Dayan, 231 Cal. App. 3d 184, 187 (1st Dist. 1991). 

2

 In his third claim, petitioner suggests that CDC officials failed to give petitioner

sentence credit he has earned, which would have reduced his minimum total sentence of

seventeen years imprisonment. Pet. at 6-6A. However, petitioner fails to present anything

indicating that reducing petitioner’s minimum eligibility date for release would now entitle him

to release as petitioner has been incarcerated for well over seventeen years. In fact, page 50 of

Exhibit A attached to petitioner’s habeas application indicates that CDC calculated petitioner’s

minimum eligibility date for parole as July 23, 1992, and it was this date that triggered initiation

of his BPT hearings.

2

they calculated the length of petitioner’s sentence and their denial of CDC review of his claim

that he has been “over-incarcerated.” Pet. at 5-5B (claims 1 and 2). Petitioner claims he should

already have been released from prison.

Petitioner was sentenced to an indeterminate sentence1 under, among other

statutes, California Penal Code sections 187, 190(a) and 1168(b). Under California Penal Code

section 3040 the California Board of Prison Terms (BPT) has the power to decide whether those

sentenced to indeterminate terms of imprisonment will be granted parole. Petitioner has been

before the BPT on five different occasions for parole consideration and has been denied each

time. Mot., Ex. B. This matter should be dismissed because petitioner fails to allege anything to

indicate any action taken by CDC officials had any bearing on the BPT’s decision to not grant

petitioner parole.2 

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Respondents’ October 28, 2004 motion to dismiss be granted; and 

2. Petitioner’s application for writ of habeas corpus be dismissed.

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 twenty

days after being served with these findings and recommendations, any party may file written

Case 2:04-cv-01357-FCD-KJM Document 10 Filed 06/30/05 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

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.” Any reply to the objections

shall be served and filed within ten 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: June 29, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

1

braz1357.157

Case 2:04-cv-01357-FCD-KJM Document 10 Filed 06/30/05 Page 3 of 3