The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In the instant petition, Petitioner challenges the Board of Parole Hearings' (Board) 2008 denial of parole. On May 14, 2010, Respondent filed a motion to dismiss the petition for failure to state a cognizable claim. Petitioner filed an opposition on June 9, 2010.
A. Procedural Grounds for 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 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed respondents 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 (9 th 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 (9 th 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 has filed a motion to dismiss for failure to state a cognizable claim under 28 U.S.C. 2254. Therefore, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
B. Failure to State Cognizable Claim
Respondent argues that Petitioner's challenge to the Board's 2008 hearing is based solely on state law which is not cognizable under § 2254. Respondent specifically argues that Respondent's motion to dismiss is not well-received. Petitioner opposes Respondent's argument that his claims arise solely under state law.
First, Petitioner's petition does not rely solely on state law in challenging the Board's 2008 decision.*fn1 To the contrary, Petitioner sets forth the following six grounds for relief: (1) the Board failed to apply California's standard of review set forth in In re Lawrence, 41 Cal.4th 1181 (2008); (2) the Board violated his liberty interest in parole; (3) the Board failed to articulate a "nexus" that shows Petitioner is currently dangerous; (4) the Board arbitrarily and capriciously denied parole by relying on the immutable and unchangeable commitment offense and post-conviction factors; (5) the Board's interpretation of the 2008 psychological evaluation was erroneous and did not constitute "some evidence" to deny parole; (6) the Board abrogated due process and Petitioner's liberty interest by requiring him to admit guilt of his commitment offense.
Petitioner's clearly pointed to the federal basis of review under section 2254.
Second, and more importantly, in Hayward v. Marshall, issued prior to the filing of the instant motion to dismiss, the Ninth Circuit specifically found that although there is no independent right to parole under the United States Constitution, the right exists and is created by California's statutory parole scheme and is subject to review under 28 U.S.C. § 2254. Hayward v. Marshall, 603 F.3d 546, 559, 561 (9th Cir. 2010) (en banc) (citing Bd. of Pardons v. Allen, 482 ...