The opinion of the court was delivered by: Charles R. Breyer United States District Judge
Petitioner, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the California Board of ParoleHearings' ("BPH") August 29, 2006 decision to deny him parole.
In 1987, petitioner was convicted of second degree murder in the Superior Court of the State of California in and for the County of Fresno and sentenced to an indeterminate term of 15 years to life with the possibility of parole. Petitioner was denied parole until August 5, 2004, at which time the BPH finally found him suitable for parole and granted him a parole date. Shortly thereafter, the governor reversed the BPH's decision, however.
Petitioner received a subsequent parole suitability hearing on August 31, 2005; but the BPH changed course and found him not suitable for parole and denied another hearing for one year. On August 29, 2006, petitioner received a subsequent hearing and again was denied parole, but this time for three years. He challenges the August 29, 2006 decision. On January 23, 2008, the Supreme Court of California denied petitioner's challenge to the BPH's August 29, 2006 decision.
This 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). It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the applicationthat the applicant or person detained is not entitled thereto." Id. § 2243.
Petitioner seeks federal habeas corpus relief from the BPH's August 29, 2006 decision finding him not suitable for parole, and denying him a subsequent hearing for three years, on the ground that the decision does not comport with due process. Among other things, petitioner contends that the decision is not supported by some evidence in the record having an indicia of reliability. Liberally construed, petitioner's claims appear colorable under § 2254 and merit an answer from respondent. See Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-29 (9th Cir. 2006) (finding that refusal to set parole date for prisoner with 15-to-life sentence implicated prisoner's liberty interest in release on parole which cannot be denied without adequate procedural due process protections). Biggs v. Terhune, 334 F.3d 910, 914-15 (9th Cir. 2003) (same).
For the foregoing reasons and for good cause shown,
1. The clerk shall serve by certified mail a copy of this order and the petition and all attachments thereto on respondent and respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a copy of this order on petitioner.
2. Respondent shall file with the court and serve on petitioner, within 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 and serve on petitioner a copy of all portions of the state trial record that have been ...