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. 10, 1)
FINDINGS AND RECOMMENDATIONS ) TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND, TO DECLINE TO ISSUE A CERTIFICATE OF) APPEALABILITY, AND TO DIRECT 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. 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 filed on January 28, 2011. On February 7, 2011, Petitioner filed objections, which were deemed to be his opposition to the motion. Respondent did not file a reply.
I. Proceeding pursuant to Respondent's 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, upon being directed to respond to the petition by way of answer or motion, Respondent filed the motion to dismiss. The material facts pertinent to the motion are contained in the pleadings and 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 verified petition, Petitioner alleges that he is an inmate of the California Substance Abuse Treatment Facility (CSATF) at Corcoran, California, serving a sentence of seventeen
(17) years to life imposed by the San Bernardino County Superior Court upon Petitioner's conviction in November 1989 of second degree murder with use of a firearm in violation of Cal. Pen. Code §§ 187 and 12022.5. (Pet. 1.)
Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on January 30, 2009, finding Petitioner unsuitable for parole and denying parole for three years. (Pet. 4, 10, 135.) He also challenges the BPH's miscellaneous decision to schedule Petitioner's next parole hearing in one year instead of three years, and the decisions of the state courts upholding the BPH's denial of parole.
Petitioner submitted with his petition the transcript of Petitioner's parole hearing held on January 30, 2009. (Pet. 61-154.) The transcript reflects that Petitioner attended the hearing (pet. 61, 63), received all pertinent documents before the hearing and had an opportunity to correct or clarify anything in his records (pet. 66, 68), discussed various factors of parole suitability with the board (pet. 69-120), and declined to give a personal statement in his own behalf (pet. 131). An attorney appeared on Petitioner's behalf and made a statement in favor of parole. (Pet. 61, 67-68, 103, 124-31.)
Petitioner was also present when the BPH stated its reasons for concluding that Petitioner posed a present risk of danger to society and a threat to public safety if released, which included the commitment offense that BPH characterized as cold-blooded; Petitioner's prior criminality; his minimization of his role in the offense and lack of insight; his lack of credibility in describing the commitment offense; and the prosecutor's opposition to Petitioner's release. (Pet. 135-53.)
Petitioner further complains of action taken by the BPH on April 20, 2009, modifying from three years to one year the period of time before another parole hearing would be held. (Pet. 35-36, 57-60). In that decision, the BPH relied on the following: the commitment offense had been carried out in a dispassionate and calculated manner; Petitioner's insistence that the victim had threatened him and was pulling a knife when Petitioner fired his shotgun; and Petitioner's failure to understand the nature and magnitude of his offense and to demonstrate insight and remorse. (Pet. 58-59.) Petitioner argues that in the modified decision, the BPH relied on factors that had not been the subject of findings at the principal parole hearing held in January. Further, he argues that there is an absence of some evidence in the record to support the findings that the offense was carried out in a dispassionate and calculated manner and that Petitioner failed to demonstrate insight or remorse. (Pet. 36-39.) Petitioner cites state case law to support his arguments. Petitioner argues that pursuant to Cal. Code of Regs., tit. 15, § 2041(h), Petitioner and his appointed attorney should have been given an opportunity to respond in writing before the miscellaneous decision became final.
In his opposition, Petitioner admitted that he was given an opportunity to be heard at his parole hearing but denies that he was given a valid statement of reasons for the decision. Petitioner argues that the BPH's recitation of standardized suitability factors and rote statement of the facts of the crime were insufficient reasons according to state court decisions concerning the appropriate application of the parole laws. (Doc. 11, 1-2.)
Petitioner lists the following claims in the petition: 1) there was no record evidence of current dangerousness before the BPH, and thus its finding of unsuitability was not supported by some evidence; 2) the BPH's reliance on unchanging factors was insufficient because the evidence was stale and unreliable; 3) the use of facts not found by a jury or admitted to by Petitioner violates Petitioner's understanding of his plea agreement; and 4) the state courts' rulings affirming the BPH's decision were unreasonable determinations of the facts in light of the evidence. (Pet. 4-5.) The Court notes that Petitioner also appears to allege in his third claim that the BPH's reliance on facts not admitted by Petitioner in his guilty plea or found by a jury violated his rights to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000). (Pet. 33-35.)
Petitioner seeks an evidentiary hearing and an order directing his release from custody. (Pet. 42-43.)
III. Failure to State a Cognizable Due Process Claim
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 do not include the full panoply of rights available to a person facing criminal charges. Instead, the procedures required for discretionary parole suitability proceedings 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 ...