The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION IN PART AND (2) GRANTING RESPONDENT'S MOTION TO DISMISS WITHOUT PREJUDICE
Presently before the Court is Thomas Gene Mayfield's ("Petitioner") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges the Board of Prison Terms's ("Board") decision to deny Petitioner's release for parole.
On December 31, 2007, United States Magistrate Judge William McCurine, Jr. issued a Report and Recommendation ("Report") advising this Court to deny Respondent's motion to dismiss the petition for a writ of habeas corpus. Respondent timely objected to the Report. For the following reasons, the Court: (1) finds that Petitioner timely filed his petition for a writ of habeas corpus and therefore ADOPTS the Report and Recommendation in this respect, and (2) GRANTS Respondent's motion and DISMISSES Petitioner's claims for relief without prejudice.
On April 29, 1985, a Los Angeles County Superior Court sentenced Petitioner to twenty-two years to life, with the possibility of parole, for conspiracy to commit murder and for three counts of assault with a deadly weapon. [Resp.'s Lodgment 1, Judgment.]
On December 28, 2004, the Board held a hearing to determine whether Petitioner was suitable for parole. [Pet.'s Lodgment 4, Board Hearing Transcript.] The Board found Petitioner unsuitable and denied him parole on that date. [Resp.'s Lodgment 3, Board Decision.] Petitioner received the Board Hearing Transcript("Transcript") at some time after January 12, 2005. [Pet.'s Lodgment 4 at 55.] The date stamp on the Transcript states that the Board's "decision will be final on: April 27, 2005." [Pet.'s Lodgment 4 at 54.]
On August 19, 2005, Petitioner filed for a writ of habeas corpus in Los Angeles County Superior Court to challenge the Board's December 28, 2004 decision. On September 21, 2005, the Superior Court denied habeas relief finding that the Board did not abuse its discretion in denying parole. [Resp.'s Lodgment 4, Los Angeles County Superior Court Order.]
On January 13, 2006, Petitioner filed for a writ of habeas corpus in the California Court of Appeal, Second Appellate District. [Resp.'s Lodgment 5, California Court of Appeal Petition.] On February 2, 2006 the court denied the petition. [Resp.'s Lodgment 6, California Court of Appeal Order.]
On May 22, 2006, Petitioner filed for a writ of habeas corpus in the California Supreme Court. [Resp.'s Lodgment 8, California Supreme Court Petition.] On December 20, 2006, the California Supreme Court denied the habeas petition. [Resp.'s Lodgment 9, California Supreme Court Order.]
On January 17, 2007, Petitioner filed for a writ of habeas corpus in the United States District Court for the Central District of California, Western Division, Los Angeles. [Doc. No. 1 at 68; Pet.'s Lodgment 1.] The court transferred the petition to this Court, and it was subsequently filed on February 16, 2007. [Doc. No. 1 at 4.] The Petitioner presented three claims as to why his due process rights were violated: (1) that the Board based its decision to deny parole on irrelevant information, misapplied criteria, and insufficient evidence; (2) that the state trial and appellate courts that denied his petition did not consider all the facts and evidence in accordance with the requirements set forth by the California Legislature for prisoners with indeterminate life sentences; and (3) that the California Supreme Court did not base its decision on the evidence and misapplied the law. [Pet. at 5-6.]*fn1
On May 29, 2007, Respondent filed its motion to dismiss, contending that: (1) Petitioner filed after the one year statute of limitations had expired; (2) Petitioner had not exhausted his third claim for relief in state court; and (3) the petition failed to state supporting grounds for relief. [Resp.'s Motion at 1.]In response, Petitioner filed an opposition with supporting points and authorities. [Doc. No. 8.]
On December 31, 2007, U.S. Magistrate Judge William McCurine, Jr. issued the Report advising this Court to deny Respondent's motion to dismiss the petition. [Doc. No. 10.] On January 24, 2008, Respondent filed an objection to the Report. Respondent stated that Judge McCurine failedto address Respondent's arguments that Petitioner failed to state facts supporting each ground for relief and that Petitioner's third claim was not exhausted in state court. [Doc. No. 11.]
Rule 72(b) of the Federal Rules of Civil Procedure and United States Code Section 636(b)(1) set forth the duties of the district court in connection with review of a magistrate judge's report and recommendation. The district court must review de novo the portions of the report to which Respondent objects and may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). The Court may grant a petitioner's Section 2254 petition, only if the Court determines that the final California state court that reviewed the petition on the merits decided in a manner that was either "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the ...