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Algenon Mccall v. James D. Hartley

May 3, 2011

ALGENON MCCALL,
PETITIONER,
v.
JAMES D. HARTLEY, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION, TO DISMISS THE PETITION WITH PREJUDICE AND WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS (Docs. 1, 13),

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 302 and 304.

Pending before the Court is a motion to dismiss the petition filed by Respondent on February 8, 2011. On March 14, 2011, in response to the motion to dismiss, Petitioner filed a motion to dismiss his case "without prejudice" based on Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011). Respondent was electronically served with Petitioner's motion but did not file any opposition or other response to it.

I. Proceeding pursuant to Respondent's Motion to Dismiss

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 to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

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).

Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rules) allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...."

The Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).

Thus, a respondent may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n.12.

The material facts pertinent to the motion before the Court are to be found in copies of the official records of state parole and judicial proceedings which have been provided by the parties, and as to which there is no factual dispute. Because Respondent's motion to dismiss is similar in procedural standing to motions to dismiss on procedural grounds, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.

II. Background

In the petition, Petitioner challenges a decision of California's Board of Parole Hearings (BPH) made after a hearing held on August 21, 2008, at which Petitioner appeared. Petitioner claims that the decision to deny his application for parole denied his right to due process of law because there was no evidence to support the finding that Petitioner was in fact a present danger to public safety. He also alleges that the decision contravened state regulations governing the parole decision. (Pet. 5.)

It appears from Petitioner's allegations and the partial transcript of the parole hearing submitted with the petition that Petitioner attended the parole hearing before the board on August 21, 2008 (doc. 13-1, 33-35); spoke to the board about numerous suitability factors (doc. 13-1, 37-73; doc. 13-2, 1-12); and made an extensive statement to the BPH on his own behalf concerning his suitability for parole (doc. 13-2, 21-31). An appointed attorney appeared with Petitioner. (Doc. 13-1, 35.)

The transcript of the hearing also reflects that Petitioner was present at the conclusion of the hearing when the BPH explained why it decided that Petitioner was not suitable for parole. The board relied on the nature of the commitment offense, Petitioner's criminal history and unstable social history, failures on earlier grants of probation and parole, some details in Petitioner's parole plans, and Petitioner's failure to take full responsibility for the crime and to develop insight concerning his offense. (Doc. 13-2, 35-44.)

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. 5.) Petitioner contends that because there was an absence of some evidence to support the BPH's decision, the state courts' decisions upholding the denial of parole were unreasonable applications of clearly established federal law, and his right to due process of law was violated. (Id. ...


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