The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE
TO STATE A COGNIZABLE CLAIM (Doc. 1) AND TO DECLINE TO ISSUE
A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 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 on March 5, 2010. Respondent filed an answer to the petition on June 22, 2010, and Petitioner filed a traverse on July 8, 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 that the Court 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).
Petitioner alleges that he is an inmate of Avenal State Prison who is serving a sentence of seven (7) years to life plus an enhancement of four (4) years imposed by the Orange County Superior Court in 1994 for attempted murder with use of a firearm in violation of Cal. Pen. Code §§ 664, 187, and 12022.5. (Pet. 2.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on October 10, 2008, finding Petitioner unsuitable for parole. (Pet. 5-6, 10.)
Petitioner's allegations and the transcript of the parole hearing submitted with the petition reveal that Petitioner attended the parole hearing before the board on October 10, 2008 (doc. 1, 10, 12-13); spoke to the board about various suitability factors (doc. 1, 20-48); and made a statement to the board on his own behalf concerning his suitability for parole (doc. 1, 113-15). Further, counsel assisted Petitioner at the hearing and made a closing statement on his behalf. (Doc. 1, 10, 13, 19, 58-64.)
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 history of criminality and substance abuse, Petitioner's problematic social history, and his failure on previous grants of probation. (Doc. 1, 67-73.)
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. 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 were based on an unreasonable determination of the facts in light of the evidence presented at the state hearing. Petitioner also argues that the BPH failed to apply correctly California law concerning factors of parole suitability. (Pet. 5-6.)
III. Failure to State a Cognizable Claim 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 ...