The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's renewed motion to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases. For the reasons stated below, the court recommends that respondent's motion to dismiss be granted, and, in light of petitioner's three failed efforts to file a petition that states a cognizable habeas corpus claim, the petition be dismissed with prejudice, without leave to amend.
In 1996, petitioner was convicted in the Sacramento County Superior Court of second degree murder with the use of a firearm, and was sentenced to an indeterminate term of 19 years to life in state prison. On October 8, 2010, petitioner filed a second amended petition for writ of habeas corpus, alleging that the retroactive application of Proposition 9, and California Penal Code §§ 3041.5 and 3041(a), denies petitioner the fundamental right and liberty interest he holds in good-time and work-time conduct credits without due process of law. (Dkt. No. 19 at 7.) While not entirely clear, it appears petitioner contends he is being held beyond his Minimum Eligible Release Date because he is being denied those credits without due process. (Id.)
On January 25, 2011, respondent renewed the motion to dismiss,
alleging this action should be dismissed based on petitioner's failure
to allege an actual injury, and failure to exhaust any claim
concerning the October 5, 2010 parole hearing. (Dkt. No. 24.)
Petitioner filed an opposition on October 8, 2010, confirming that he
is not challenging the denial of parole on October 5, 2010 (dkt. no.
26 at 3), and is not challenging multiple year parole denials (dkt.
no. 26 at 2). Petitioner reinforces his claim that "the legislative
change in law Proposition 9, and Cal. Penal Code § 3041(a),*fn1
. . . exposes petitioner to a sufficient risk of prolonged
violation of ex post facto, and by virtue of deprivation of good-time,
work-time conduct credits." (Dkt. No. 26 at 5.) Respondent filed a
reply on February 25, 2011, noting that petitioner apparently
challenges "an unidentified deprivation of an unspecified number of
good-time, work-time and/or conduct credits." (Dkt. No. 27 at 1.)
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, Rules Governing Section 2254 Cases; see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated"). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
First, because petitioner has confirmed he is not challenging the October 5, 2010 parole hearing, the court need not address respondent's motion to dismiss on exhaustion grounds.
Second, Proposition 9, approved by California voters in 2008, amended California Penal Code § 3041.5 to defer subsequent parole consideration hearings for longer periods of time.*fn2 Id. It appears petitioner is not challenging California Penal Code § 3041.5. Thus, the court need not address California Penal Code § 3041.5 or Proposition 9.
Third, it does not appear that petitioner claims an increase in duration between parole hearings violates the Ex Post Facto Clause.*fn3 Rather, it appears petitioner is again attempting to argue that he is being exposed to a significant risk of prolonged incarceration by virtue of an unidentified deprivation of good-time, work-time, and/or conduct credits in violation of the Ex Post Facto Clause.
The United States Constitution prohibits states from passing any "ex post facto Law." U.S. Const., Art. I, § 10. A law is an ex post facto law if it meets two conditions. First, "it must apply to events occurring before its enactment." Weaver v. Graham, 450 U.S. 24, 29 (1981). "In other words, it must be retrospective." Hunter v. Ayers, 336 F.3d 1007, 1011 (9th Cir. 2003). It must also disadvantage the person affected by either altering the definition of criminal conduct or increasing the punishment for the crime. Id. The ex post facto prohibition applies in the context of prison time credits. Weaver, 450 U.S. at 29 (ex post facto prohibition applied to state statute reducing the amount of good time credits which could be earned by prisoners); Hunter, 336 F.3d at 1011 (ex post facto prohibition applied to regulations that eliminated restoration of forfeited good time credits for serious infractions). In the context of prison time credits, "the core question for ex post facto purposes is whether the changed law imposes 'punishment more severe than the punishment assigned by law when the act to be punished occurred.'" Hunter, 336 F.3d at 1011 (quoting Weaver, 450 U.S. at 30.)
However, in the instant action, petitioner has again failed to articulate a specific deprivation of credits, but references only a theoretical deprivation. Indeed, petitioner refers to his injury as a "significant risk of prolonged incarceration." (Dkt. No. 26 at 4.) Petitioner does not state any specific facts concerning the application of the cited laws to him. Petitioner fails to identify the date, participants, or substance of any particular hearing or decision by any parole authority, disciplinary body, or prison official. Petitioner does not provide any facts concerning any specific loss of time credit or otherwise set forth any specific dates or figures. Petitioner merely speculates about the application of the challenged laws to him, and his potentially having been detained for a longer period as a result.
In order to bring this claim in federal court, petitioner must demonstrate that he has suffered an injury-in-fact or that the alleged deprivation is (a) concrete and particularized and (b) actual or imminent, not just speculative or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 540, 560 (1992); see also Matter of Extradition of Lang, 905 F.Supp. 1385, 1397 (C.D. Cal. 1995) (mere unconstitutionality of statute does not create standing as plaintiff must claim some particularized injury resulting from application of statute). A "speculative and attenuated possibility" ...