The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE
TO STATE A COGNIZABLE CLAIM (Doc. 1)
AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE:
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 was 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 July 21, 2009. Respondent filed an answer to the petition on October 29, 2009, and Petitioner filed a traverse on April 26, 2010.
I. Consideration of Dismissal of the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts
(Habeas Rules) requires that the Court 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 alleges that he is an inmate of Pleasant Valley State Prison who is serving a sentence of sixteen years to life imposed in the Fresno County Superior Court in 1989 upon Petitioner's conviction of second degree murder and voluntary manslaughter in violation of Cal. Pen. Code §§ 187 and 192(A). (Pet. 1, 8.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on June 5, 2007, finding Petitioner unsuitable for parole. (Pet., doc. 1, 20.)
It appears from Petitioner's allegations and the transcript of the parole hearing submitted by Respondent that Petitioner attended the parole hearing before the board on June 5, 2007 (Ans. Ex. A [doc. 13-1], 59-62); spoke to the board about various suitability factors (id. at 63-1050); was represented by counsel, who argued in his behalf (id. at 109-14); and made his own statement to the BPH concerning his suitability for parole (id. at 114-16).
The transcript of the hearing also reflects that Petitioner was present at the conclusion of the hearing when the BPH explained why it decided that Petitioner was not suitable for parole. The board relied on the nature of the commitment offense and Petitioner's need to be discipline-free, get through AA/NA to establish mechanisms for relapse prevention, engage in further self-help concerning anger management, pick up marketable skills, and engage in other educational processes. (Ans. Ex. A [doc. 13-1], 117-27.)
Petitioner contends that the BPH denied Petitioner's right to due process of law because there was no evidence to support the decision, and the BPH gave inappropriate weight to the nature of the commitment offense. (Pet. 29, 55.) Petitioner also contends that the BPH failed to consider many of the applicable parole suitability factors and denied Petitioner a fully individualized consideration of the evidence. (Pet. 50-55.) Petitioner thus asks this Court to review the BPH's weighing of the evidence and to determine 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. 30-50.) Petitioner necessarily also contends that because there was an absence of some evidence to support the BPH's decision, the state courts' decisions upholding the denial of parole were unreasonable applications of clearly established federal law.
III. Failure to State a Cognizable Claim
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. ...