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 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 1

500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHN C. MONTUE,

Petitioner, No. CIV S-04-2663 LKK JFM P

vs.

TERESA A. SCHWARTZ, et al., ORDER AND 

Respondents. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding pro se and in forma pauperis with an

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The instant action was filed on

December 17, 2004 and challenges a 1997 decision of the California Board of Prison Terms to deny

petitioner parole. Respondents have moved to dismiss the instant action on the grounds that (1) it is

a second or successive petition; (2) it is time-barred; and (3) the court lacks subject matter

jurisdiction over petitioner’s claims. Petitioner has filed an opposition to the motion and a request

for release on his own recognizance or reasonable bail.

The court’s records show that petitioner previously filed in this court an action

challenging the 1997 denial of parole, Case No. CIV S-98-1580 LKK JFM P. The district court

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 Petitioner had appended to his motion a November 22, 2004 order from the United States Court 2

of Appeals for the Ninth Circuit denying his request for authorization to file a second or successive

habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the 1997 denial of parole.

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denied that petition in March 2001, and that decision was affirmed by the United States Court of

Appeals for the Ninth Circuit. 

On December 9, 2004, petitioner filed in Case No. CIV S-98-1580 LKK JFM P a

motion pursuant to Fed. R. Civ. P. 60(b) for relief from the judgment and, subsequently, an amended

Rule 60(b) motion. On July 8, 2005, this court issued findings and recommendations recommending

that the amended Rule 60(b) motion be construed as a second or successive habeas corpus petition

and, so construed, be denied for failure to obtain authorization from the United States Court of

Appeals for the Ninth Circuit to proceed with such a petition in this court. In the findings and 2

recommendations, the court noted petitioner’s alternative contention that the court of appeals had in

its November 22, 2004 order authorized petitioner to challenge “his parole status” in a habeas corpus

petition pursuant to 28 U.S.C. § 2241. (Findings and Recommendations, filed in Case No. CIV S98-1580 LKK JFM P on July 8, 2005, at 4 n.5.) This court found petitioner’s argument without

merit for several reasons, including but not limited to the fact that petitioner had not filed a § 2241

petition in that action. (Id.) The court also noted a published opinion of the court of appeals in

White v. Lambert, 370 F.3d 1002 (9 Cir. 2004), holding that § 2254 is the “exclusive vehicle” for th

federal habeas corpus actions brought by state prisoners whether or not the challenge is to an

underlying state conviction. (Id.)

Petitioner filed objections to the July 8, 2005 findings and recommendations, which

were adopted in full by the district court on August 24, 2005. On September 2, 2005, petitioner filed

a motion for reconsideration of that order, together with a proposed habeas corpus petition pursuant

to 28 U.S.C. § 2241. By order filed September 20, 2005, the district court denied that motion for

reconsideration. In that order, the court specifically found that “petitioner may not proceed with this

second or successive challenge to the California Board of Prison Terms’ 1997 decision to deny him

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 Because this action is duplicative, the court makes no findings or recommendations on 3

contentions raised in respondents’ February 6, 2006 amended motion to dismiss.

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parole, whether that challenge is presented as a Rule 60(b) motion, a second or successive petition

pursuant to 28 U.S.C. § 2254, or a petition pursuant to 28 U.S.C. § 2241.” (Order filed September

20, 2005, in Case No. CIV S-98-1580 LKK JFM P at 2.) Petitioner has filed a notice of appeal from

that order. 

The question whether petitioner may proceed in this court, whether by Rule 60(b)

motion, § 2254 petition, or § 2241 petition, with a second challenge to the 1997 denial of parole has

been resolved adversely to him by the district court in Case No. CIV S-98-1580 LKK JFM P, and

petitioner has filed a notice of appeal from that decision. The instant action is duplicative of

petitioner’s attempt to raise a new challenge to the 1997 denial of parole in Case No. CIV S-98-1580

LKK JFM P. It should therefore be dismissed.3

For all of the foregoing reasons, IT IS HEREBY ORDERED that petitioner’s

February 17, 2006 request for release on his own recognizance or for bail is denied; and

IT IS HEREBY RECOMMENDED that this action be dismissed.

These findings and recommendations are submitted to the District Judge assigned to

this 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 objections with the court. The

document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” 

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: March 30, 2006. 

12;mont2663.157

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