The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR ) FAILURE TO STATE A COGNIZABLE
CLAIM (Doc. 1) ) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY
OBJECTIONS DEADLINE: THIRTY (30) 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 matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on January 21, 2011.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus.
The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
Here, Petitioner alleges that he is an inmate of Avenal State Prison who is serving a sentence of seventeen years to life imposed in the Los Angeles County Superior Court after Petitioner's conviction of murder and attempted murder. (Pet. 9.) Petitioner challenges the decision of the governor of California made on May 3, 2010, to rescind the decision of the Board of Parole Hearings that had been made on December 8, 2009, releasing Petitioner on parole.
It appears from Petitioner's allegations that he attended the parole hearing before the Board on December 8, 2009 (Pet. 14); he spoke to the Board about the commitment offense and a doctor's report (Pet. 14-15); and he was represented by counsel, who also attended the hearing, examined Petitioner, and argued on Petitioner's behalf (Pet. 15). Petitioner alleges that the governor summarized his decision to rescind the decision to release Petitioner, and it may be inferred that Petitioner received the summary because Petitioner quoted from it in the petition. (Pet. 16-17.) The governor's summary indicates that his decision was based on the gravity of the crimes, Petitioner's failure to accept full responsibility for his murderous actions and lack of insight into his role in the offense, and the unreasonable risk of recidivism and violence that resulted therefrom. (Pet. 17.)
Petitioner asks this Court to review whether there was some evidence to support the conclusion that Petitioner was unsuitable for parole because he posed a current threat of danger to the public if released. (Pet. 10, 18.) Petitioner raises three claims: 1) he did not receive an individualized consideration of the criteria for release on parole as set forth in state statutes and regulations, and thus he was denied due process of law under the California constitution as well as the Fourteenth Amendment (Pet. 2, 18-21); 2) there is no evidence to support the governor's conclusion that Petitioner was a current danger if released, and thus Petitioner was denied due process of law under the Fourteenth Amendment as well as the California constitution (Pet. 22-32); and 3) the decision of the state superior court upholding the governor's decision was objectively unreasonable because it ignored facts that were contrary to the court's decision and thus proceeded in a manner inconsistent with California case law (Pet. 32-34).
II. Failure to Allege a Claim Cognizable on Habeas Corpus Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).
The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures with respect to the liberty interest. Swarthout v. Cooke, 562 U.S. --, -- S.Ct. -, 2011 WL 197627, *2 (No. 10-133, Jan. 24, 2011).
However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979). *fn1
Swarthout v. Cooke, 2011 WL 197627, *2. In Swarthout, the Court rejected inmates' claims that they were denied a liberty interest because there was an absence of "some evidence" to ...