The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS CERTIFICATE OF APPEALABILITY
TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) ) AND TO DECLINE TO ISSUE A OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis 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 26, 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 the California Substance Abuse Treatment Facility (CSATF) at Corcoran, California, serving a sentence of seventeen (17) years to life for a conviction of second degree murder sustained in the Los Angeles County Superior Court. (Pet. 1.) Petitioner challenges the decision of the California Board of Parole Hearings (BPH) made on February 5, 2008, finding Petitioner unsuitable for parole. (Pet. 79-88.)
It appears from the allegations of the petition and attached documentation that Petitioner voluntarily declined to attend the suitability hearing. The transcript of the hearing reflects that the Presiding Commissioner recited that Petitioner had signed an institutional form stating that he did not personally wish to attend his hearing, but he did desire to be represented by counsel. (Pet. 50.) It has thus been demonstrated that Petitioner received advance notice of the hearing and waived his right to attend in writing.
The petition further reflects that John Ibrahim, Petitioner's attorney, attended the hearing and was given an opportunity to be heard. Counsel confirmed that Petitioner did not want to appear; he had no "ADA issues; he did not object to any panel members; his rights had been met; and the Board's proceeding on a particular report was permissible. Counsel for Petitioner affirmatively argued that Petitioner was suitable for parole. (Pet. 51-52, 54-55, 66, 74-78.) Therefore, Petitioner had an opportunity to be heard.
The attachments to the petition demonstrate that Petitioner received a written statement of the reasons for the decision and the evidence relied upon. Petitioner attached to the petition a copy of the BPH's decision, which explained the reasons for denial of parole and the evidence relied upon by the board. (Pet. 79-88.) The BPH's decision reflects that the BPH relied on the commitment offense, Petitioner's history of alcohol-related disciplinary offenses in prison, his anger, an unsupportive psychiatric report, and inadequate parole plans. (Id.) The court concludes that Petitioner received a statement of reasons and identification of the pertinent evidence supporting the decision.
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. 10-11, 90-93.) Petitioner complains that the Board 1) proceeded without all existing evidence before it; 2) failed to refer to a psychiatric report, and 3) improperly relied on the unchanging factor of the commitment offense. (Pet. 4-5.) Petitioner also alleges that in denying Petitioner's habeas petition, the state trial court failed to review the psychiatric report and parole plans, and relied on non-violent criminal history. (Pet. 5.)
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 ...