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Michael S. Davis v. Ken Clark

May 31, 2011

MICHAEL S. DAVIS,
PETITIONER,
v.
KEN CLARK, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS THE PETITION (DOCS. 13-14)

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE (DOCS. 1, 13-14)

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 October 14, 2010 (doc. 5). Pending before the Court is the Respondent's motion to dismiss the petition, which was filed on February 15, 2011, and served on Petitioner on the same date. (Docs. 13-14; doc. 13, p. 4.) No opposition was filed by Petitioner.

I. Proceeding pursuant to a 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.

II. Background

Petitioner alleges that he was an inmate of the California Substance Abuse Treatment Facility and State Prison at Corcoran, California (CSATF) serving a sentence of twenty-five (25) years to life imposed by the San Bernardino County Superior Court upon Petitioner's conviction of first degree murder in 1994. (Pet.

1.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) finding Petitioner unsuitable for parole after a hearing held on September 4, 2008. (Pet. 3.) Petitioner alleges that his due process rights were violated because the BPH denied parole without any evidence to support the determination that Petitioner posed a current, unreasonable risk of danger. (Pet. 3.) Petitioner argues that the BPH improperly relied on Petitioner's commitment offense, unstable social history, prior juvenile criminality, and lack of insight into the commitment offense. (Pet. 11-19.)

Petitioner has attached a copy of the transcript of the parole hearing held before the BPH on September 4, 2008. (Pet. 22-151.) The transcript reflects that Petitioner received documents before the parole hearing and was given an opportunity to correct or clarify the record (pet. 28-29, 115); appeared at the hearing (pet. 22, 138); addressed the BPH under oath concerning multiple factors of parole suitability (pet. 29-120); made a personal statement to the BPH concerning his suitability for parole (pet. 134-36); and ...


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