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 (DOCS. 12, 1),
TO DISMISS THE PETITION 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
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 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 Respondent's motion to dismiss the petition, which was filed and served by mail on Petitioner on January 28, 2011. (Doc. 12, 4.) No opposition or notice of non-opposition to the motion was filed.
I. Consideration of the 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.
In this case, before an answer was filed, the United States Supreme Court decided Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859 (2011), which appears to apply to the petition in the case before the Court. Within a few days of the decision, Respondent filed a motion to dismiss the petition because the petition does not state a claim cognizable in a proceeding pursuant to 28 U.S.C. § 2254.
The material facts pertinent to the motion 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.
In the petition filed on December 2, 2010, Petitioner alleges that he was an inmate of the Avenal State Prison at Avenal, California, serving a sentence of twenty-seven (27) years to life imposed by the Fresno County Superior Court upon Petitioner's conviction in May 1984 of first degree murder with the use of a firearm. (Pet. 1.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) rendered after a hearing held on October 7, 2009, finding Petitioner unsuitable for parole. (Pet. 14.) Petitioner also challenges the decisions of the state courts upholding the BPH's decision on the ground that the courts misapplied California's "some evidence" standard. (Pet. 4.)
Petitioner raises the following claims in the petition concerning a denial of due process of law (pet. 14-30): 1) the decisions of the state courts were contrary to, or involved an unreasonable application of, clearly established federal law; 2) the state court decisions were based on an unreasonable determination of facts in light of the evidence presented (pet. 4); 3) the BPH failed to apply the correct standard of review or misapplied the standard of review of parole suitability factors set by California law (pet. 5); 4) the BPH failed to articulate a rational nexus between the evidence and the finding that Petitioner then presented a danger to the public safety because in light of Petitioner's subsequent behavior and mental status, the circumstances of the offense were no longer a reliable indicator of dangerousness (pet. 5); 5) [also numbered as ground three on pet. 6] Petitioner's commitment offense was no more cruel or heinous than any other first degree murder and thus reliance on it to deny parole might deny due process of law (pet. 6); and 6) [also numbered as ground four on pet. 6] the factors cited by the BPH as supporting denial of parole do not demonstrate current danger, and thus reliance thereon was an abuse of discretion in view of Petitioner's history, his showing of remorse and taking full responsibility for the offense, his maturity, and a psychological evaluation concluding that he presented a low risk of danger to the community (pet. 6).
The transcript of the parole hearing held on October 7, 2009, demonstrates that Petitioner received documents before the hearing and was given an opportunity to clarify or correct the record (pet. 38-39, 41), attended the hearing (pet. 33, 36), voluntarily chose not to discuss any matter with the BPH on the day of the hearing, and declined to make a closing statement. (Pet. 41-42, 50, 60.) An attorney appeared at the hearing and advocated on Petitioner's behalf, which included giving a closing statement in favor of parole. (Pet. 36, 41, 45, 47, 55-60.) Petitioner's attorney was given opportunities for input with respect to factors of parole suitability. (Pet. 45, 47.)
The BPH considered the information reflected in the transcripts, Petitioner's C-File, and the BPH's files. (Pet. 43-50.)
Petitioner was present when the BPH gave its reasons for denying parole for three years, which included the commitment offense, involvement of multiple victims and drug use, Petitioner's criminal history, unstable social history, failure on previous grants of probation and after incarceration in the county jail, drug and alcohol use, the prosecutor's opposition to release, and the uncertainty of Petitioner's ...