ORDER AND 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. Petitioner has paid the filing fee.
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."
In his petition for writ of habeas corpus, petitioner challenges the April 5, 2007 decision of the California Board of Parole Hearings denying him parole. Petitioner's sole claim is that the Board denied him his constitutional right to represent himself at his suitability hearing. According to petitioner, prior to attending his parole hearing he met with assigned counsel. At that time, he declined the assistance of an attorney and stated that he wanted to represent himself. Petitioner alleges, however, that the Board's presiding commissioner refused to allow him to represent himself at the hearing and informed him that a state-appointed attorney would represent his due process rights. (Pet. at 5; Attach. at 1-3; Pet'r's Decl. at i; Exs. B & D.)
The instant petition should be dismissed. Even assuming for the sake of argument that there is any legal basis for petitioner's claim, the record in this case flatly contradicts the factual basis of petitioner's claim. Specifically, the record before this court establishes that the presiding commissioner at petitioner's parole hearing allowed him to represent himself during the proceedings. (Pet., Ex. D.)
At the outset of the hearing when petitioner stated that he wanted to represent himself, the presiding commissioner acknowledged that petitioner had submitted a request for waiver of attorney. The commissioner also noted, however, that at petitioner's previous parole hearing he needed the assistance of an attorney and could not conduct the hearing by himself. The commissioner informed petitioner that he was entitled to represent himself but that his appointed attorney would represent his due process concerns. Petitioner reiterated that he was qualified to represent himself and insisted that he wanted to speak to the panel directly and not through an attorney. The presiding commissioner responded that petitioner would be permitted represent himself, that panel members would speak directly to him and he to them, and that his state-appointed attorney was only there to monitor the proceedings to address any due process flaws in the proceedings. (Pet., Ex. D.)
Petitioner then clarified for the Board that he did not want to be considered for parole and instead wished to "make a statement." Specifically, the hearing proceeded as follows:
Inmate Williams: This is not a petition nor a campaign to be found suitable for parole. That's what I'm saying. In other words, that process, I don't even want, I'm not even here for that.
Presiding Commissioner Garner: Well, that's kind of unfortunate because that's the whole purpose of the hearing today, sir. What do you think we're here for? Inmate Williams: . . . . I'm here to make a statement. After I make a statement, this will be my last time appearing before the Board. I will not be back any more after this hearing. But I'm just here to make a statement today.
Presiding Commissioner Garner: You wish to make a statement at this point? Inmate Williams: I have a lot of statements to make.
Presiding Commissioner Garner: Well, I'm only going to give you an opportunity to make statements with respect ...