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), DISMISS PETITIONER'S MOTION FOR AN EXTENSION OF TIME
AS MOOT (DOC. 16), 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 302 and 304. Pending before the Court is the petition, which was filed in this Court on September 20, 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).
In the present case, on December 17, 2010, the Court's initial screening of the petition resulted in the issuance of an order to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies.
Petitioner sought extensions of time within which to respond.*fn1
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, the Court proceeds to consider whether the petition states a cognizable claim for relief.
Petitioner alleges that he was an inmate of the California Substance Abuse Treatment Facility at Corcoran, California (CSATF), who is serving a sentence of fifteen (15) years to life imposed in the Los Angeles County Superior Court pursuant to Petitioner's 1980 conviction of second degree murder. (Pet. 1.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) finding Petitioner unsuitable for parole made after a hearing held on May 27, 2009; Petitioner also argues that the state court decisions upholding the governor's parole determination were objectively unreasonable. (Pet. 5-6, 10, 2.)
It appears from Petitioner's allegations and the partial transcript of the parole hearing submitted by Petitioner in support of the petition that he attended the parole hearing before the Board on May 27, 2009, and had an opportunity to address the board concerning parole suitability factors such as his disciplinary history and his work as a caregiver. (Pet. 10, 12-18.) Petitioner was given a statement of reasons for the BPH's denial of parole, which was based on the board's conclusion that Petitioner would pose an unreasonable risk of danger or threat to public safety if released from prison. (Pet. 12, 12-18.) The reasons included Petitioner's violent criminal and disciplinary history, which reflected a long-term, major problem with anger. (Pet. 12-18.)
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. 5-6.) Petitioner argues that his right to due process of law under the Fourteenth Amendment was violated because the evidence of Petitioner's past disciplinary problems was stale and insufficient to support the finding of current danger, the board failed to articulate a rational nexus between his history and current dangerousness, and the board failed to conduct an individualized assessment of each of the statutory factors of parole suitability as required by California statutes and case law. (Pet. 5-6.)
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 ...