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Samuel Venegas v. Cognizable Nick Dawson

May 27, 2011

SAMUEL VENEGAS,
PETITIONER,
v.
COGNIZABLE NICK DAWSON, ET AL.,
RESPONDENTS.



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 CLAIM (Doc. 1)

FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO 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 on May 11, 2011.

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).

Here, Petitioner alleges that he is an inmate of the Avenal State Prison at Avenal, California, serving a sentence of seven (7) years to life imposed by the Los Angeles County Superior Court for Petitioner's conviction in November 1979 of conspiracy to commit murder, first degree murder, discharge of a firearm into an inhabited dwelling, and assault with a deadly weapon. (Pet. 1.) Petitioner challenges the decision of the California Board of Parole Hearings (BPH) made after a hearing held on May 6, 2009, finding Petitioner unsuitable for parole. (Pet. 4, 7-39.) Petitioner also challenges the decisions of the state courts that upheld the BPH's decision. (Pet. 7-8, 18-19.)

It appears from the allegations of the petition and the transcript of the hearing of May 6, 2009, submitted by Petitioner with his petition, that Petitioner reviewed his central file in advance of the hearing, attended the hearing, discussed numerous suitability factors with the commissioners of the BPH and testified under oath, and made a personal statement in favor of parole. (Pet. 46, 48, 53-98, 105-08.) Further, an attorney appeared at the hearing, acknowledged receipt of full documentation in advance of the hearing, and advocated on Petitioner's behalf, including making a statement to the BPH in favor of parole. (Pet. 46, 48, 52-53, 98-105.)

The attachments to the petition further demonstrate that Petitioner was present when the BPH gave a statement of the reasons for the BPH's decision to deny parole for three years, which was based on the conclusion that Petitioner posed a present risk of danger to society or a threat to public safety if released. (Pet. 109.) The BPH relied on the commitment offense, which included a gang action involving multiple victims in separate incidents, Petitioner's history of criminality and gang leadership, and Petitioner's minimization of his conduct. (Pet. 109-16.)

Accordingly, the Court notes that the undisputed record of the pertinent proceedings of the BPH shows that Petitioner had access to information before the hearing, attended the hearing and had an opportunity to be heard, and received a statement of reasons for the decision.

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. 14, 18-19, 26-39.) Petitioner raises the following claims in the petition: 1) in concluding that Petitioner posed a danger, the BPH improperly relied on Petitioner's having participated in two murders that were never charged or proved (pet. 8); 2) the BPH improperly relied on the immutable facts of Petitioner's thirty-one-year-old crime and a fourteen-year-old rule violation report (pet. 8, 17); 3) the evidence actually demonstrated Petitioner's suitability for parole (pet. 9, 11-12); 4) the trial court illegally and unreasonably found that Petitioner was responsible for three people being killed (pet. 10); 5) the BPH improperly relied on a single 2007 psychology report that indicated that Petitioner presented a high risk of danger to society (pet. 14-17); and 6) state law created a liberty interest in parole that supported Petitioner's reasonable expectation of parole, and Petitioner's liberty interest was infringed by the BPH's decision (pet. 21-28).

II. 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 ...


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