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 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 August 26, 2009. Respondent filed an answer on July 29, 2010, and Petitioner filed a traverse on August 19, 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, Respondent answered the petition on July 29, 2010, and Petitioner filed a traverse on August 19, 2010. 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 twenty (20) years to life imposed in the Los Angeles County Superior Court upon Petitioner's 1989 conviction of second degree murder and assault with a deadly weapon. (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. 4-12.) It appears that the decision in question followed a hearing held before the BPH on December 3, 2008. (Pet. 7.)
It appears from the transcript of the hearing submitted by Respondent with the answer that Petitioner attended the parole hearing before the Board on December 3, 2008. (Ans., Ex. A [doc. 11-1], 28.) Petitioner was represented by counsel, who spoke on behalf of Petitioner. (Id. at 28, 36; Ex. A [doc. 11-4], 34, 39, 81-83.) Petitioner spoke to the Board about various suitability factors and personally made a statement. (Ans., Ex. A (doc. 11-4], 40-78, 83-85.) Petitioner was given a statement of reasons for the BPH's grant of parole. (Ans., Ex. A [doc. 11-1], 30-36, 35.)
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) his right to due process of law was violated when he did not receive an individualized consideration by the BPH of the criteria for release on parole, including Petitioner's rehabilitation and current risk of danger; 2) his right to due process of law was violated because the immutable factors relied on by the state court did not constitute "some evidence"; 3) the BPH failed to create a nexus between Petitioner's commitment offense and his current dangerousness, and thus there was an absence of "some evidence" to support a finding of a threat to public safety; and 4) the board failed to demonstrate that the commitment offense was atrocious and cruel. (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 ...