The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION WITHOUT LEAVE TO AMEND FOR PETITIONER'S FAILURE TO ALLEGE A CLAIM ENTITLING PETITIONER TO ) RELIEF IN A PROCEEDING PURSUANT TO 28 U.S.C. § 2254 (Doc. 1)
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE CASE
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. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on January 31, 2011 (doc. 10). Pending before the Court is Petitioner's petition, which was filed in this Court on November 16, 2010.
I. Screening 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).
Petitioner alleges he was an inmate of the Avenal State Prison serving a sentence of fifteen (15) years to life pursuant to a sentence imposed on August 16, 1991, by the Los Angeles Superior Court upon Petitioner's conviction of second degree murder, attempted murder, and assault with a firearm in violation of Cal. Pen. Code §§ 187, 664, and 245. (Pet. 1-2.) Petitioner challenges a decision of California's Board of Parole Hearings (BPH) made after a hearing held on August 27, 2009, denying Petitioner's application for parole because he was found unsuitable. (Pet. 5, 21.)
Petitioner raises the following claims in the petition: 1) the decision violated Petitioner's right to due process of law because it was not supported by some evidence (pet. 5, 7, 23);
2) the BPH's denial of parole violated Petitioner's right to the equal protection of the laws (pet. 5, 7, 28); 3) Petitioner was subjected to an ex post facto law because the board denied parole for three years "Under The New Marcy's Law, Proposition 9" (pet. 5, 21), which the Court understands to be a reference to California's Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," a provision that on November 4, 2008, effected an amendment of Cal. Pen. Code § 3041.5(b)(3) that resulted in a lengthening of the period between parole suitability hearings (pet. 5, 7-9, 27, 29, 33, 36-37); 4) Petitioner's rights under the First Amendment were violated (pet. 9, 29); and 5) the board violated state regulatory and statutory law and failed to base its decision on codified suitability criteria (pet. 27, 30, 32). Petitioner contends that the decision reflected impermissible reliance on immutable factors such as the commitment offense, lacked the support of any evidence, and was made without the consideration and weighing of all favorable evidence. (Pet. 7, 19-22, 28, 31.) Petitioner argues that the evidence of Petitioner's parole suitability that was before the board merited a grant of parole. (Pet. 33-36.)
On December 20, 2010, the Court issued an order to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies. (Doc. 7.) Petitioner responded on December 20, 2010, by providing a copy of his petition for writ of habeas corpus filed in the California Supreme Court in case no. S181886, which demonstrated that the claims raised in the petition before the Court were raised before the California Supreme Court. (Doc. 8, 12-42.)
Petitioner submitted the transcript of the proceedings held before the BPH on August 27, 2009. (Pet., doc. 1-1, 55-100; doc. 1-2, 1-46.) The transcript reflects that Petitioner received documents before the hearing (doc. 1-1, 61-64); attended the hearing (pet., doc. 1-1, 55, 58); addressed the board concerning numerous factors of parole suitability (doc. 1-1, 64-100; doc. 1-2, 1-24); made a personal statement to the board in favor of parole (doc. 1-2, 28-30); and was represented by counsel, who advocated and made a closing statement on Petitioner's behalf (doc. 1-1, 55, 58, 62-64; doc. 1-2, 10-11, 25-28).
Petitioner was present when the board stated its reasons for the finding of unsuitability for parole and the denial of parole for three years, which was based on the conclusion that there was an unreasonable risk of danger to others if Petitioner were released. The board noted Petitioner's commitment offense and his later conviction of possession of a nail while in custody, Petitioner's history of alcoholism, Petitioner's lack of insight into his offense, and what was considered to be untruthfulness in Petitioner's explanations of his criminal conduct. (Pet., doc. 1-2, 31-45.)
III. Failure to State a Cognizable Due Process Claim The petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Accordingly, 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 support the decision to deny parole. The Court stated:
There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication--and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California's received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.)
Swarthout, 131 S.Ct. 859, 862. The Court concluded that the petitioners had received the process that was due as follows:
They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied....
That should have been the beginning and the end of the federal habeas courts' inquiry into whether [the petitioners] received due process.
Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly noted that California's "some evidence" rule is not a substantive federal requirement, and correct application of California's "some evidence" standard is not ...