The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 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 petitioner has failed to state a cognizable claim for federal habeas relief. Petitioner has opposed the motion. For the reasons stated below, the court orders that respondent's motion to dismiss is granted, with leave for petitioner to file an amended petition.
In 1996, petitioner was convicted in the Sacramento County Superior Court of second degree murder with the use of a firearm, and was sentenced to an indeterminate term of 19 years to life in state prison.
On August 10, 2009, petitioner filed a petition for writ of habeas corpus, alleging that the retroactive application of "California Penal Code § 3041(a)(2)(3), Proposition 9," exposes petitioner to a significant risk of prolonged incarceration and a more severe punishment in violation of the Ex Post Facto Clause. (Am. Pet. at 4.) Petitioner also alleges a deprivation of "good-time, work-time and pre and post-confinement" credits. (Am. Pet. at 4.) On August 6, 2010, respondent filed the pending motion to dismiss, alleging this action should be dismissed based on petitioner's failure to allege an actual injury. (Id. at 3.) Petitioner filed an opposition to that motion on August 23, 2010, claiming he is not challenging a denial of parole or California Penal Code § 3041.5. (Opp'n at 1.) Petitioner reinforces his challenge to California Penal Code § 3041(a)(2)(3), and states this statute is depriving him of good-time, work-time and conduct credits. (Opp'n at 1.) Respondent filed a reply on August 31, 2010, noting that California Penal Code § 3041(a) does not contain a subpart (2) or (3), and renewing the motion to dismiss on the ground that petitioner has failed to explain "when, how, or how many credits" petitioner allegedly has been denied, thus failing to establish an injury in fact. (Id. at 2, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 540 (1992).)
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 also 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, 2010 WL 703211, at *2 (E.D. Cal. 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, 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).
First, as noted by respondent, Proposition 9, approved by California voters in 2008, amended California Penal Code § 3041.5*fn1 to defer subsequent parole consideration hearings for longer periods of time. Id. Petitioner has confirmed that he is not challenging California Penal Code § 3041.5. (Opp'n. at 1.) Thus, the court need not address California Penal Code § 3041.5 or Proposition 9.
Second, the court notes that respondent is correct; there is no subpart (2) or (3) to California Penal Code § 3041(a). Id. The entire portion of Section 3041(a) reads as follows:
In the case of any inmate sentenced pursuant to any provision of law, other than Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, the Board of Parole Hearings shall meet with each inmate during the third year of incarceration for the purposes of reviewing the inmate's file, making recommendations, and documenting activities and conduct pertinent to granting or withholding post-conviction credit. One year prior to the inmate's minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5. No more than one member of the panel shall be a deputy commissioner. In the event of a tie vote, the matter shall be referred for an en banc review of the record that was before the panel that rendered the tie vote. Upon en banc review, the board shall vote to either grant or deny parole and render a statement of decision. The en banc review shall be conducted pursuant to subdivision (e). The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime. At least one commissioner of the panel shall have been present at the last preceding meeting, unless it is not feasible to do so or where the last preceding meeting was the initial meeting. Any person on the hearing panel may request review of any decision regarding parole for an en banc hearing by the board. In case of a review, a majority vote in favor of parole by the board members participating in an en banc review is required to grant parole to any inmate.
Cal. Penal Code § 3041(a). Although petitioner contends he is challenging California Penal Code § 3041(a)(2)(3), no such subparts exist, so this court need not address this statute.
Third, petitioner insists he is not challenging parole hearings or denials of parole. (Opp'n at 1.) This denial is made despite his reliance on Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). (Opp'n at 2-3.) It does not appear petitioner claims an increase in duration between parole hearings violates the Ex Post Facto Clause. See Gilman v. Davis, 690 F.Supp.2d 1105 (E.D. Cal. 2010). Rather, petitioner appears to argue that he is being exposed to a significant risk of prolonged incarceration ...