The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DIRECTING RESPONDENT WARDEN J. SOLIS TO SHOW CAUSE WHY RELIEF SHOULD NOT BE GRANTED
Petitioner Bennie Blakenship is a prisoner of the State of California who is incarcerated at the Correctional Training Facility at Soledad. He has filed this habeas corpus petition pursuant to 28 U.S.C. § 2254 and paid the filing fee. Petitioner challenges the constitutional validity of former Governor Grey Davis's 2003 decision--based on the nature of Petitioner's commitment offense--to reverse the Board of Prison Terms' finding that Petitioner was suitable for release on parole. Petitioner states that he presented his claims for review to the State courts and that the California Supreme Court denied all claims in September 2004.
A district court may entertain a petition 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 the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see Rose v. Hodges, 423 U.S. 19, 21 (1975). The court shall issue an order directing the respondent to show cause why the writ should not be granted unless it plainly appears from the petition that the petitioner is not entitled to relief. See 28 U.S.C. § 2243; Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254.
Petitioner properly raises his constitutional challenges to his continued confinement in this federal habeas corpus petition. See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). When considering whether the denial of parole suitability violates federal constitutional law, a district court may consider whether "[a] continued reliance in the future on an unchanging factor . . . runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." Biggs v. Terhune, 334 F.3d 910, 916-17 (9th Cir. 2003); see id. (upholding initial denial of parole release date based solely on the nature of the crime and the prisoner's conduct before incarceration, but cautioning that "[o]ver time . . . , should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs' offense and prior conduct would raise serious questions involving his liberty interest in parole."). Because it does not plainly appear from the face of the petition that Petitioner is not entitled to relief, Respondent Warden J. Solis will be ordered to answer the petition.*fn1
The Clerk of the Court shall serve a copy of this Order and the petition and all attachments thereto upon Respondent Solis and Respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on Petitioner at his most current address.
Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the Answer a copy of all portions of the relevant BPT suitability hearing records, the Governor's decision, and any other State records that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.
If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with the Court and serving it on Respondent's counsel within sixty (60) days of his receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision thirty days after the date Petitioner is served with Respondent's Answer.
Respondent may file a motion to dismiss on procedural grounds in lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent's counsel an opposition or statement of non-opposition to the motion within sixty (60) days of receipt of the motion, and Respondent shall file with the court and serve on Petitioner a reply within thirty (30) days of receipt of any opposition.
Petitioner is reminded that all communications with the Court must be served on Respondent by mailing a true copy of the document to Respondent's counsel.
Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than seven days prior to the deadline sought to be extended.