The opinion of the court was delivered by: Marilyn Hall Patel United States District Judge
David Bryan Hart, an inmate at the Correctional Training Facility in Soledad, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases.
Hart was convicted in Fresno County Superior Court of second degree murder and was sentenced in 1983 to a term of 17 years to life in prison. His petition does not challenge his conviction but instead challenges California Governor Schwarzenegger's January 10, 2007 decision to reverse a grant of parole by the Board of Parole Hearings ("BPH") and find him not suitable for parole. Hart apparently filed an unsuccessful habeas petition in the California Supreme Court before filing this action.
This court may entertain a petition for 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). A district court considering an application for a writ of habeas corpus 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 application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in 9 the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Hart alleges that his right to due process was violated because there was insufficient evidence to support the Governor's decision that he was not suitable for parole. The insufficiency of the evidence claim is cognizable as a claim for a violation of Hart's right to due process. See Board of Pardons v. Allen, 482 U.S. 369 (1987); Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-27 (9th Cir. 2006).
For the foregoing reasons,
1. The petition's due process claim based on the alleged insufficiency of the evidence is cognizable and warrants a response from respondent.
2. The clerk shall serve by certified mail a copy of this order, the petition and all attachments thereto upon respondent and respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on petitioner.
3. Respondent must file and serve upon petitioner, on or before September 26, 2008 , 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 must file with the answer a copy of all portions of the parole hearing record that have been previously transcribed and that are relevant to a determination of the issues presented by the petition.
4. If petitioner wishes to respond to the answer, he must do so by filing a traverse with the court and serving it on ...