FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding with counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that his continued detention by the California Department of Corrections and Rehabilitation (CDCR) violates his due process rights. Pending before the court is respondent's motion to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases. Therein, respondent argues that the petition: (1) is barred by the statute of limitations set forth in 28 U.S.C. § 2244(d); and (2) petitioner has failed to state a cognizable claim for federal habeas relief. Petitioner has opposed the motion. For the reasons stated below, the court recommends that respondent's motion to dismiss be granted.
On May 29, 1981, petitioner was convicted in the San Francisco County Superior Court of second degree murder and was later sentenced to an indeterminate term of 15 years to life imprisonment. (Pet. at 7.) Petitioner's minimum eligible parole date was set at February 22, 1990, and his maximum eligible parole date was set for November 21, 1995. (P. & A. in Supp. of Pet. (P. & A.) at 6.) Petitioner has since appeared before the California Board of Parole Hearings (Board) on several occasions, but the Board has not granted him parole. (Resp'ts' Mot. to Dismiss (MTD) at 3.) Petitioner currently remains in CDCR's custody. (Pet. at 7.)
On January 23, 2003, petitioner filed a petition for writ of habeas corpus in the San Francisco County Superior Court, alleging violations of his state and federal due process rights. (P. & A., Ex. H.) That petition was denied in a reasoned order filed March 20, 2007. (P. & A., Ex. I.) Petitioner filed a subsequent habeas petition in the California Court of Appeal for the First Appellate District. (P. & A., Ex. J.) That petition was summarily denied on July 12, 2007. (P. & A., Ex. K.) On September 25, 2007 petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (P. & A., Ex. L.) That petition was also summarily denied on March 19, 2008. (P. & A., Ex. M.)
On March 16, 2009, petitioner filed his federal petition for writ of habeas corpus, alleging that his continued detention by the CDCR violates his due process rights. On May 18, 2009, respondent filed the pending motion to dismiss. Petitioner filed an opposition to that motion on June 17, 2009.*fn1 Respondent filed a reply on June 24, 2009. The court heard argument on the motion on July 17, 2009.
STANDARDS APPLICABLE TO THE MOTION TO DISMISS
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, Rules Governing Section 2254 Cases. See White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated); Vargas v. Adler, No. 1:08-cv-01592 YNP [DLB] (HC), 2010 WL 703211, at *2 (E.D. Cal. Feb. 25, 2010) (granting motion to dismiss a habeas claim for failure to state a cognizable federal claim). Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases indicates that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. See, e.g., Miles v. Schwarzenegger, No. CIV S-07 -1360 LKK EFB P, 2008 WL 3244143, at *1 (E.D. Cal. Aug. 7, 2008) (dismissing habeas petition pursuant to respondent's motion to dismiss for failure to state a claim). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
I. Statute of Limitations
Respondent contends that the petition is time-barred under the Antiterrorism and Effective Death Penalty Act's (AEDPA) one-year statute of limitations because the factual predicate of petitioner's claim arose, at a minimum, over two years before petitioner sought federal habeas relief. (MTD at 4.) Petitioner counters that his petition is timely because the statute of limitations for the filing of his federal habeas petition began to run only after the California Supreme Court denied him habeas relief on March 18, 2008. (Opp'n at 5.) Because AEDPA's statute of limitations is not jurisdictional, see Green v. White, 223 F.3d 1001, 1003-04 (9th Cir. 2000), and because the issues involved in the statute of limitations arguments of the parties are complex in this case, the court elects to proceed to the merits of respondent's motion to dismiss the petition for failure to state a cognizable federal claim. Day v. McDonough, 547 U.S. 198, 199 (2006) ("[T]he court holds that a district court has discretion to decide whether the administration of justice is better served by dismissing the case on statute of limitations grounds or by reaching the merits of the petition."); Bruno v. Director, CDCR, No. CIV S-02-2339 LKK EFB P, 2010 WL 367538, at *2 (E.D. Cal. Jan. 26, 2010) ("[T]he court elects to deny petitioner's habeas petition on the merits rather than reach the equitable tolling issue.").
II. Failure to State a Cognizable Claim
Petitioner alleges that he entered into a contract with the CDCR in 1984, whereby he exchanged his good time credits for the right to earn credits at a higher rate subject to the requirement that he engage in prison work. (Pet. at 6-7.) Petitioner claims that when the CDCR set his base term and then adjusted that term to reflect his maximum eligible parole date, he expected to be released no later than that base term date of July 3, 1996. (Pet. at 7.) Based upon this unique theory, petitioner claims that his confinement beyond July 3, 1996, amounts to a deprivation of his "specific liberty interest" in release in violation of his due process rights as recognized by the court in McQuillion v. Duncan (McQuillion I), 306 F.3d 895 (9th Cir. 2002). (Pet. at 1.)
In moving to dismiss the pending petition, respondent contends that petitioner has failed to state a cognizable claim for federal habeas relief because petitioner has never been granted parole by the Board. (MTD at 1-2.) Respondent also argues that the decision in McQuillion I is factually distinguishable from this case and that petitioner's claimed expectation of release, even if legitimately held, does not entitle him to federal habeas relief.
The court finds respondent's arguments in this regard persuasive. The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. One alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not ...