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LaBranch v. Yates

March 3, 2010

GARY LABRANCH, PETITIONER,
v.
JAMES YATES, RESPONDENT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is Respondent's motion to dismiss (Doc. 15). Petitioner file an opposition (Doc. 16); Respondent filed a reply (Doc. 17).

I. BACKGROUND

This case proceeds on petitioner's amended petition filed April 13, 2009.*fn1 In his petition, petitioner is challenging the California Board of Parole Hearings' ("the Board") 2007 decision denying him parole. His petition raises seven claims: (1) the decision not supported by some evidence; (2) failure to provide Petitioner with the Board's report until the day before the initial hearing violated his due process rights; (3) factual errors in the Psychiatric Report denied him due process; (4) failure to set a uniform term of commitment is unauthorized life without the possibility of parole sentence; (5) failure to adopt procedures for issuing multiple year parole denials denied him due process; (6) the Board's composition violates due process; and (7) People v. Watson, 30 Cal.3d 290 (1981) is illegal, vague, and is in contraction with California Penal Code § 188.

II. MOTION TO DISMISS

Respondent moves this court to dismiss five of Petitioner's claims arguing they fail to warrant federal habeas relief (claims one, two, three, five and six), and Petitioner's challenge to his 1988 conviction (claim seven) is untimely.*fn2 Respondent argues that Petitioner has only raised one federal claim, that the Board violated the Eighth Amendment and Equal Protection Clause by failing to set a term of confinement (claim four).

Petitioner opposes the dismissal of any of his claims and reiterates that the claims at issue allege violations of his due process rights.

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. 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 v. Pulley, 533 F. Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982).

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of a transgression of federal law binding on the state courts. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is not available for alleged error in the interpretation or application of state law. Middleton, 768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo. See Milton v. Wainwright, 407 U.S. 371, 377 (1972).

However, a "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)); see also Lisenba v. California, 314 U.S. 219, 236 (1941). In order to raise such a claim in a federal habeas corpus petition, the "error alleged must have resulted in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428 (1962); Crisafi v. Oliver, 396 F.2d 293, 294-95 (9th Cir. 1968); Chavez v. Dickson, 280 F.2d 727, 736 (9th Cir. 1960). This petition at issue before the court stems from the Board's decision to deny

Petitioner a parole date. Petitioner, proceeding in pro se, raises claims regarding the proceedings the Board utilized in reaching their decision. Petitioner argues, albeit somewhat inarticulately, that all of the errors alleged, taken together, violated his due process rights, resulting in a complete miscarriage of justice. While Petitioner may not express himself so clearly, the court must read pro se pleadings liberally. In so doing, the court finds that Petitioner should be allowed to proceed on his claims to the extent they allege a due process violation. Whether he will be successful on his claims is not before the court at this time. However, the undersigned is unable at this juncture to determine that petitioner is not entitled to relief, and the motion to dismiss for failure to state a federal claim should be denied.

In addition, Respondent argues that Petitioner's seventh claim, regarding the validity of his conviction is untimely and should be dismissed. Petitioner responds that his conviction is based on a vague and indefinite statute in violation of his Sixth and Fourteenth Amendment rights. Petitioner specifically states in his amended petition that the judgment of conviction was dated in December 1988.

Federal habeas corpus petitions must be filed within one year from the later of:

(1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. ยง 2244(d). Typically, the statute of limitations will begin to run when the state court judgment ...


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