The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 14) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on December 21, 2009, seeking a reduction in Petitioner's sentence for the performance of a meritorious act pursuant to California state law. (Doc. 1). On March 24, 2010, the Court ordered Respondent to file a response. (Doc. 9). On May 21, 2010, Respondent filed the instant motion to dismiss the petition, contending that Petitioner failed the "in custody" requirement of federal habeas law. (Doc. 14). Petitioner has not filed an opposition to the motion to dismiss.
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition because Petitioner has not met the "in custody" requirement of federal habeas law and because his claim fails to raise a cognizable federal habeas issue. 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.
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 Petitioner's failure to meet the "in custody" requirement of federal habeas law and Petitioner's failure to raise a cognizable federal habeas issue. 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 Respondent has not yet filed a formal Answer, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4.
On May 12, 2003, Petitioner was convicted in the Los Angeles County Superior Court, in case number LA042635, of a violation of California Health & Safety Code § 11350(A) (possession of a controlled substance), and was sentenced to a prison term of three years plus a one-year enhancement, for a total prison term of four years. (Doc. 1, p. 35). While serving that prison term, in 2006 Petitioner assisted in a vehicle rescue and safe medical transport of a critically injured correctional officer. (Doc. 1, p. 33; Doc. 14, Ex. 1; Doc 14, Ex. 3). Subsequently, a Departmental Review Board recommended that Petitioner be awarded 180 days of Meritorious Sentence Reduction ("MSR") pursuant to California Penal Code § 2935.*fn1 (Doc. 1, p. 33). Petitioner was paroled in case number LA042635 on February 25, 2007 approximately three months before he was awarded the MSR. (Doc. 14, Ex. 3, Chronological History). Petitioner's actual date of discharge from supervision of the California Department of Corrections and Rehabilitation ("CDCR") for case number LA042635 was February 25, 2010. (Id.). In granting the MSR, the DRB noted that due to the fact that he had "paroled," "the action to grant him an MSR may impact his remaining parole period." (Doc. 14, Ex. 1)
While on parole in case number LA042635, Petitioner re-offended and was taken into custody on a parole hold. (Doc. 14, Ex. 3, Chronological History, p. 1). Petitioner was then charged in the Los Angeles County Superior Court, in case number LA057781-01, with a violation of California Health & Safety Code § 11350(A)(possession of a controlled substance). (Doc. 1, p. 40). Petitioner requested placement in a live-in drug treatment facility rather than a return to prison on his parole violation. (Doc. 14, Ex. 3, Attach. 3, pp. 5-6). CDCR offered, and Petitioner accepted, a residential drug treatment program in lieu of re-incarceration for a parole violation. (Id.).
However, Petitioner was then convicted on February 22, 2008 of the drug charge in case number LA057781-01 and sentenced to a prison term of two years and eight months. (Doc. 1, p. 40). While incarcerated for this new offense, Petitioner initiated an administrative appeal seeking to receive the meritorious sentence reduction resulting from the 2006 incident. (Doc. 14, Ex. 3, Attach. 5). At the first level of review, Petitioner's request was denied. (Id., Attach. 6). CDCR reasoned that, because Petitioner had been serving a sentence that, pursuant to California's Three Strikes Law as codified in Penal Code § 1170.12, could not be reduced by more than one-fifth, or no less than eighty percent, of the mandated term, the additional 180 days of MSR could not be applied without violated California law. (Id.).
Dissatisfied with this reasoning, Petitioner appealed to the next administrative level, citing In re Young, 32 Cal.4th 900 (2004). In that case, the California Supreme Court addressed whether a "reduction of the sentence" under Penal Code § 2935 for a MSR constituted, for purposes of § 1170.12, a "credit" in the same sense as good time credits and conduct credits. Young, 32 Cal.4th at 905. The high court concluded that a reduction for a heroic act was not subject to the twenty percent maximum reduction for credits under § 1170.12. Id.
The second level review partially granted Petitioner's request insofar as it determined that, under Young, the prior administrative decision that the MSR was effectively nullified by § 1170.12 was a methodology that apparently conflicted with the California Supreme Court's interpretation of Penal Code § 2935. (Doc. 14, Ex. 3, Attach. 7). The matter was delegated to CDCR's ...