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Bair v. Finn

January 26, 2009

CLIFFORD LEE BAIR, PETITIONER,
v.
CLAUDE FINN, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 11, 2008, the undersigned ordered respondent to file and serve a response to the petition. On June 30, 2008, respondent moved to dismiss the petition on the grounds that it fails to state a cognizable claim for federal habeas relief and is untimely. Petitioner has filed an opposition to respondent's motion to dismiss. Respondent has not filed a reply.

BACKGROUND

On October 19, 2007, petitioner commenced this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of California. On November 2, 2007, the Northern District transferred the case to this court where venue was proper.

In the petition it is claimed that the Board of Parole Hearings ("Board") has delayed petitioner's parole hearings and effectively added nineteen months to his sentence. Specifically, petitioner claims that the Board scheduled his initial parole hearing for August 1999. However, the hearing did not take place until April 2000. Similarly, petitioner claims that the Board scheduled his first subsequent parole hearing for April 2003. However, that hearing did not take place until July 2003. Finally, petitioner claims that the Board scheduled his second subsequent hearing for July 2006. However, the hearing did not take place until March 2007. According to petitioner's calculation, the Board's delays have added nineteen months to his sentence in violation of his rights under the Due Process Clause. (Pet. at 5 & Ex. A.)

RESPONDENT'S MOTION TO DISMISS

Respondent has moved to dismiss the petition, arguing that petitioner's claims are based on alleged violations of state law for which he is not entitled to federal habeas relief. Specifically, respondent observes that petitioner is claiming that the delays in holding his parole hearings should be added together and applied so as to advance the date he is to appear before the Board for his third subsequent parole hearing. Respondent contends that petitioner's claims amount to nothing more than an alleged violation of state law. (Resp't's Mot. to Dismiss at 4.)

Respondent also argues that petitioner's claims pertaining to his April 2000 and July 2003 parole hearings are barred by the applicable statute of limitations. Specifically, respondent argues that any possible claims stemming from these hearings were obvious to petitioner at the time of the hearings. Thus, absent any applicable tolling he had one year thereafter, until April 2001 and July 2003 respectively, to bring any federal claims related to these parole hearings. Petitioner did not initiate any challenge to the hearing delays in the state courts until May 2007. By that time, the statute of limitations had expired. (Resp't's Mot. to Dismiss at 6.)

Finally, respondent argues that petitioner's allegations do not establish standing and are too vague and conclusory to challenge his March 2007 parole hearing. Specifically, respondent argues that petitioner has not alleged any facts or set forth any evidence to support a challenge to the March 2007 parole hearing. (Resp't's Mot. to Dismiss at 5-6.)

PETITIONER'S OPPOSITION

In opposition to respondent's motion to dismiss, petitioner argues that he has a federal liberty interest in parole and in timely parole hearings. He argues that, because the Board denied him parole three times for three years, his next parole hearing should have been scheduled for August 2008, which is nine years after his initial parole hearing was scheduled. Petitioner's next parole hearing, however, is not scheduled to take place until March 2010, ten years and seven months after his initial parole hearing was scheduled. Petitioner contends that he has been prejudiced by the delay in his parole hearings and asks this court to schedule his next hearing according to the Board's denials not including its delays. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 2-5.)

ANALYSIS

I. Standard of Review

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); ...


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