The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DENY RESPONDENT'S MOTION TO DISMISS THE PETITION AS MOOT AND SUCCESSIVE (Doc. 17)
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION AS CONTAINING UNEXHAUSTED CLAIMS (Doc. 11) ) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 1, 2008, Petitioner filed his petition for writ of habeas corpus in this Court. (Doc. 1).
Petitioner challenges the April 9, 2007 decision by Governor Arnold Schwarzenegger to reverse a November 15, 2006 grant of parole by the Board of Parole Hearings ("the Board"). (Doc. 1). Petitioner raises three claims in the instant petition: (1) Gov. Schwarzenegger's reversal of the Board's grant of parole was not supported by "some" evidence; (2) Gov. Schwarzenegger exceeded the scope of his "review" authority, i.e., failing to rebut the presumption that the Board fully and fairly considered all of the relevant information, in violation of Petitioner's due process rights; and (3) Gov. Schwarzenegger's authority to reverse the Board arose after Petitioner's conviction and is thus a violation of the federal ex post facto law. (Id., pp. 10-11).
On March 19, 2009, the Court ordered Respondent to file a response to the petition. (Doc. 6). On May 13, 2009, Respondent filed the instant motion to dismiss, contending that Grounds One and Two had not been exhausted in state court because Petitioner had not "fairly presented" those claims to the California Supreme Court as federal claims. (Doc. 11). Petitioner filed an opposition to the motion to dismiss, arguing that he had in fact referred in his state petitions to violations of due process, that he had cited some federal case law, and that he had cited the Fourteenth Amendment in his Table of Authorities. (Doc. 13). Respondent then filed a reply to Petitioner's opposition. (Doc. 14).
On December 8, 2009, Petitioner filed a Notice of Change of Address with this Court, indicating that he had been released on parole. (Doc. 15). Along with the change of address, Petitioner also filed a motion to continue the case, arguing that the case should not be deemed moot just because he had been released on parole. (Id.). On January 4, 2010, Respondent filed an opposition to Petitioner's motion to continue the case, contending that the case was moot because Petitioner had received the relief that he had requested in the petition, i.e., release on parole, and that the petition was a second and successive petition because Petitioner was seeking the same remedy as he had sought in a prior federal petition. (Doc. 17).
For purposes of this Findings and Recommendations, the Court will consider Respondent's mootness and "second and successive petition" arguments as being additional grounds for Respondent's motion to dismiss. For the reasons discussed below, the Court does not agree with Respondent either that the case is moot or that it constitutes a second and successive petition. However, the Court does agree with Respondent that Grounds One and Two in the instant petition are not exhausted because Petitioner's failed to fairly present those claims as federal constitutional violations in the California Supreme Court. Therefore, the Court will recommend that, before dismissing the petition as a mixed petition, Petitioner should be given the option of withdrawing his unexhausted claims and proceeding solely on Ground Three.
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition because it contains two unexhausted claims and because the petition is moot. 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 of the Rules Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990).
The Ninth Circuit has allowed Respondent's to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's Motion to Dismiss is based on mootness, being a second and successive petition, and for lack of exhaustion. Because Respondent's Motion to Dismiss is similar in procedural standing to a Motion to Dismiss for failure to exhaust state remedies or for state procedural default and because Respondent has not yet filed a formal Answer, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4.
B. The Petition Is Not Moot
"Article III, Section 2 of the United States Constitution establishes the scope of federal court jurisdiction, which includes 'all Cases...arising under this Constitution...[and] Controversies to which the United States shall be a Party...." Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005). The "case or controversy" requirement of Article III deprives the Court of jurisdiction to hear moot cases. Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1983); NAACP., Western Region v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984). Mootness is jurisdictional. Id.; Foster v. Carson, 347 ...