The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 2254 (DOC. 1)
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER'S MOTION FOR DISCOVERY AS MOOT (DOC. 4) OBJECTIONS DUE: THIRTY (30) DAYS AFTER SERVICE
Petitioner is a state prisoner proceeding with counsel 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 303. Pending before the Court is the petition, which was filed on October 30, 2009 (doc.1).
Petitioner alleges that California's Board of Parole Hearings (BPH) violated his right to due process of law guaranteed by the Fourteenth Amendment when on July 17, 2007, the BPH sitting en banc disapproved a hearing panel's earlier finding that Petitioner was suitable for parole. Petitioner alleges that his state-created liberty interest in parole arising under Cal. Pen. Code § 3041 was infringed because the en banc board's finding that the hearing panel committed fundamental error (i.e., that Petitioner was unsuitable) was not supported by any evidence that rationally supported the findings that the board had to make to warrant a rescission of parole pursuant to Cal. Pen. Code § 3041(b) and Cal. Code Regs. tit. 15, §§ 2450, 2451(c). Petitioner likewise contends that the same defects were present in the decision of the California Supreme Court upholding the board's decision, and thus, those decisions were unreasonable applications of clearly established federal law. (Pet. 5, 7-12.) Specifically, Petitioner contended that the board and the California courts reviewing the board's decision improperly relied on information from confidential informants within the prison. He further argues that it was a denial of due process for the state courts to refuse to let Petitioner's attorney review the confidential information during the course of the state court proceedings. (Pet. 11-12.)
Respondent answered the petition on September 10, 2010, admitting that Petitioner has exhausted his state judicial remedies with respect to his claims that the 2007 decision violated his due process rights and that the Superior Court had erred in considering the confidential information under seal, and further admitting that the petition is timely under 28 U.S.C. § 2244(d)(1). (Ans. [doc. 24], 3.) Petitioner filed a traverse on October 29, 2010.
The record before the Court reflects that Petitioner was present at the August 20, 2003, hearing when the hearing panel of the BPH found Petitioner suitable for parole. (Pet. Ex. B [doc. 2-5], 1-2.) Petitioner represented himself because he lacked confidence in his counsel's work and did not want to delay the hearing. Petitioner responded to the panel's statements and questions, and he made a statement to the hearing panel. (Id. at 7-8, 12-52.) The panel concluded that Petitioner was suitable for parole and stated its reasoning; Petitioner was granted parole pending review and approval. (Id. 53-60.)
The BPH sat en banc on October 15, 2003, considered and disapproved the August 2003 proposed decision of the panel, and found rehearing necessary because the hearing panel did not consider confidential material in Petitioner's central file, Petitioner's mental health evaluations, and the prisoner's life prisoner evaluations. (Pet. Ex. C [doc. 2-6], 1.) *fn1
After successfully challenging in state court the first disapproval by the en banc board, Petitioner was given a second en banc review on July 17, 2007. The full board again disapproved the decision in favor of parole that had been made by the panel at the hearing in 2003. In a written "MISCELLANEOUS DECISION," the full board explained that the decision to disapprove the grant of parole was based on errors of fact made by the hearing panel in not considering confidential information and minimizing the jury's decision, the gravity of the crime, and Petitioner's psychological status. (Pet. Ex. F [doc. 2-9], 1-6.) The errors rendered it substantially likely that a substantially different decision would be made upon rehearing. (Id. at 1.)
The decision included in the record submitted by Petitioner in support of the petition appears to be stamped "INMATE COPY." (Id. at 1.) After the California courts rejected Petitioner's petitions for writ relief, Petitioner filed the instant petition.
Further, Petitioner filed a motion for discovery on October 30, 2009. Respondent filed an opposition on October 13, 2010, and Petitioner filed a reply on October 27, 2010. In the motion, Petitioner seeks 1) copies of all materials in the confidential file on which California's BPH relied in 2007 in rescinding the earlier decision of the BPH panel that found Petitioner suitable for parole, and 2) one hundred (100) randomly selected transcripts of parole suitability hearings for life prisoners conducted in California in 2003.
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).
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 ...