The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 19]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on September 13, 2010. Petitioner challenges the Board of Parole Hearings' December 15, 2008 determination finding him unsuitable for release. Petitioner contends the Board's decision violated his federal due process rights because it lacked sufficient evidentiary support and because the composition of the Board's commissioners does not comply with California Penal Code section 5075(b), which instructs the Governor and California Senate to appoint commissioners who "reflect as nearly as possible a cross section of the racial, sexual, and geographic features of the population of the State."
On February 3, 2011, the Court dismissed Petitioner's challenge to the sufficiency of the evidence in light of the Supreme Court's decision in Swarthout v. Cooke, __ U.S. __, 131 S.Ct. 859 (2011) (per curiam). The Court directed Respondent to file a response to Petitioner's challenge to the composition of the Board's commissioners.
Respondent filed a motion to dismiss on March 18, 2011. Petitioner filed an opposition on April 6, 2011, and Respondent filed a reply on April 11, 2011.
I. Procedural Grounds for Motion to Dismiss
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 of the Rules Governing Section 2254 Cases. A motion to dismiss is a proper response to such petitions. Id.; White v. Lewis, 874 F.2d 599, 602-603 (9th Cir. 1997), superseded by statute on other grounds in Binford v. Rhode, 116 F.3d 396, 398-399 n.3 (9th Cir. 1997). The rules governing section 2254 proceedings permit the filing of a motion to dismiss to avoid "the necessity of filing an answer on the substantive merits of the petition." Rules Governing Section 2254 Cases, Rule 4 advisory committee's note; Lonchar v. Thomas, 517 U.S. 314, 325-326 (1996); White, 874 F.2d at 602. Thus, if the petition fails to state a cognizable claim, it may be dismissed without a review of the merits.
"[F]ederal habeas corpus relief does not lie for errors of state law. Swarthout v. Cooke, 131 S.Ct. at 861 (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)); Pulley v. Harris, 465 U.S. 37, 41 (1984); Milton v. Wainwright, 407 U.S. 371, 377 (1972). The Antiterrorism and Effective Death Penalty Act (AEDPA) precludes relief unless the state inmate can demonstrate a constitutional violation based on clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(a), (d). Petitioner bears the burden of demonstrating entitlement to federal habeas corpus relief under section 2254. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990).
A. Failure to State a Cognizable Federal Claim
Petitioner contends his federal due process rights were violated by the composition of the Board's commissioners. As an initial matter, Petitioner's claim appears to be based entirely on a alleged violation of California Penal Code section 5075(b). Petitioner has not demonstrated that the Due Process Clause of the federal Constitution guarantees that he will be considered for parole by a Board comprised of commissioners of any particular race, sex, economic status, or geographic origin. Absent such clearly established federal law, Petitioner's claim is based entirely on the alleged violation of state law, which is not cognizable via section 2254.
B. Failure to Challenge Fact or Duration of Custody
A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Rules Governing Section 2254 Cases, Rule 1 advisory committee's note. State inmates seeking federal habeas corpus relief are limited to challenging their "custody." 28 U.S.C. § 2254(a). In determining when inmates may bring a habeas petition, "the [Supreme] Court has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement." Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). Therefore, if success on a inmate's claim does not "necessarily spell speedier release, habeas corpus relief is not available. Id. at 81-82 (holding federal habeas jurisdiction lacking ...