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Randy Maran Whittenburg v. Ken Clark

March 3, 2011

RANDY MARAN WHITTENBURG, PETITIONER,
v.
KEN CLARK, RESPONDENT.



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), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 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 72-302 and 72-304. Pending before the Court is the petition, which was filed on March 1, 2010. Respondent filed an answer on May 24, 2010, and Petitioner filed a traverse on June 23, 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 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, after the answer and traverse were filed, the United States Supreme Court decided Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011). Because Swarthout appears to govern the instant case, and because no motion to dismiss the petition has been filed, the Court proceeds to consider whether the petition states a cognizable claim for relief.

II. Background

Petitioner alleges that he is an inmate of the California Substance Abuse Treatment Facility and State Prison at Corcoran, California, who is serving a sentence of twenty-six (26) years to life imposed in the Los Angeles County Superior Court upon Petitioner's 1989 conviction of first degree murder with a firearm. (Pet. 1.) Petitioner challenges a decision of the California Board of Parole Hearings (BPH) finding Petitioner unsuitable for parole and also argues that the state courts' decisions upholding the board's denial of parole were objectively unreasonable. (Pet. 4-8.) It appears that the decision in question followed a hearing held before the BPH on September 23, 2008. (Ans., Ex. A [doc. 10-1], 2.)

It appears from the transcript of the hearing submitted by Respondent with the answer that Petitioner attended the parole hearing before the Board on September 23, 2008. (Ans., Ex. 1 [doc. 10-1], 67, 69; Ex. 2 [doc. 10-3], 74.) Petitioner was represented by counsel, who spoke on behalf of Petitioner. (Ans., Ex. 2 [doc. 10-3], 74, 81-82; [doc. 10-4], 35-39.) Petitioner spoke to the Board about various suitability factors and personally made a statement. (Ans., Ex. 2 [doc. 10-3], 81-114; [doc. 10-4], 1-25, 29, 39.) Petitioner was given a statement of reasons for the BPH's grant of parole. (Ans., Ex. 2 [doc. 10-4], 40-55.)

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. 4-5.) Petitioner raises the following claims: 1) the evidence of Petitioner's behavior and programming exceeded the requirements of the parole statutes and regulations and the recommendations of the previous parole panel, and thus Petitioner should have been found suitable; 2) Petitioner's right to due process of law was violated because the BPH failed to give Petitioner individualized consideration of his own behavior; 3) Petitioner's right to due process of law was violated by the failure of the BPH to hold annual parole hearings as the state's high court determined were required pursuant to its interpretation of state statutes; and 4) the decision that Petitioner was unsuitable for parole violated Petitioner's right to due process of law because none of the evidence cited by the BPH or state courts supported a finding of current, unreasonable danger to the public. (Pet. 4-5.)

III. 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. --, 131 S.Ct. 859, 861-62 (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, 131 S.Ct. 859, 862. In Swarthout, the Court rejected inmates' claims that they were denied a liberty interest because there was an absence of "some evidence" to ...


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