The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER'S FIRST, SECOND, THIRD, AND FIFTH CLAIMS WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER'S FOURTH CLAIM WITH LEAVE TO AMEND (Doc. 1) 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 February 8, 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).
Petitioner, an inmate of the California State Prison at Avenal, California, is serving a sentence of ten (10) years to life imposed by the Los Angeles Superior Court in case number VAO24361 on June 14, 1993. (Pet. 4.) Petitioner challenges a decision of California's Board of Parole Hearings (BPH), which became final on August 12, 2009, after a hearing held on April 14, 2009. The BPH denied parole for five years. (Id.)
Petitioner raises the following grounds: 1) there was no evidence supporting the denial of parole, and thus Petitioner suffered a violation of due process of law with respect to his liberty interest; 2) there was no evidence of any nexus between the reasons for parole denial and the crime or between the decision and public safety; 3) the BPH violated Petitioner's right to due process of law in relying on Petitioner's confession, which was obtained in violation of Petitioner's privilege against self-incrimination; 4) the trial court's sentencing Petitioner under Cal. Pen. Code, § 667.5 violated Petitioner's rights to due process of law and double jeopardy under the Fifth and Fourteenth Amendments; and 5) the BPH failed to provide an individualized consideration of the parole suitability factors. (Pet. 8-15, 28, 32.) Petitioner also requests "proof of claims" concerning various aspects of the BPH and the California and federal governments. (Pet. 35-39.) *fn1
Petitioner seeks a new parole hearing. (Pet. 40.)
Petitioner attaches to his petition a transcript of the hearing before the BPH held at Avenal State Prison on April 14, 2009. (Pet. 44-129.) The transcript reflects that Petitioner appeared at the hearing, responded to questions from the commissioners, made a closing statement, and was represented by counsel who participated on Petitioner's behalf. (Pet. 46, 47, 50-77, 71-72, 77-109, 111-19.) The transcript further reflects that after a brief recess, the board stated its reasons for denying parole. (Pet. 120-28.)
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). *fn2
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 ...