The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1),
DENY PETITIONER'S MOTION FOR BRIEFING AS MOOT (DOC. 13),
DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 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 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 1) the petition, filed on September 10, 2010, and 2) Petitioner's motion to permit briefing before the Court rules on the petition, filed on February 7, 2011.
I. Sua Sponte 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, Respondent answered the petition on December 16, 2010, and Petitioner filed a traverse on January 10, 2011. Subsequently, 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.
Petitioner alleges that he is an inmate of Avenal State Prison who is serving a sentence of sixteen (16) years to life imposed in the Kern County Superior Court upon Petitioner's 1995 conviction of second degree murder and robbery with a principal armed with a gun. (Pet. 1.) Petitioner challenges the decision of the governor of California made in December 2009 to rescind the decision of the Board of Parole Hearings (BPH) finding Petitioner suitable for parole that had been made after a hearing held on July 8, 2009. Petitioner also argues that the state court decisions upholding the governor's parole determination were objectively unreasonable. (Pet. 14-18.)
It appears from Petitioner's allegations that he attended the parole hearing before the Board on July 8, 2009. (Pet. 15:1-4.) Petitioner spoke to the Board about the commitment offense, a history of gang association, and parole plans. (Pet. 15-17.) Petitioner was given a statement of reasons for the BPH's grant of parole. (Pet. 17-18.) Thereafter, when the governor rescinded the grant of parole, Petitioner received a summary of the governor's reasons. (Pet. 18.) The governor's summary indicates that his decision was based on Petitioner's failure to gain sufficient insight into his role in the commitment offense and his failure to develop coping strategies to resist gang participation in the future; the governor concluded that Petitioner still posed a risk of recidivism, violence, and an unreasonable risk to public safety. (Pet. 18.)
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. 9, 19.) Petitioner raises two claims:
1) he did not receive an individualized consideration of the criteria for release on parole as set forth in state statutes and regulations, and thus he was denied due process of law under the Fourteenth Amendment (Pet. 19, 31-33); and 2) there is no evidence to support the governor's conclusion that Petitioner was a current danger if released, and thus Petitioner was denied due process of law under the Fourteenth Amendment (Pet. 20-35). Petitioner contends that the state court decisions upholding the governor's decision thus were objectively unreasonable. (Pet. 33-35.)
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. ...