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Devin Otte v. J. Hartley

June 13, 2011

DEVIN OTTE,
PETITIONER,
v.
J. HARTLEY, 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. 10, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE

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 Respondent's motion to dismiss the petition, which was filed on March 8, 2011. Petitioner filed an opposition to the motion on March 30, 2011. No reply was filed.

I. Proceeding by 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 in the District Courts (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.

Here, 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 found 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 alleged that he was an inmate of the Avenal State Prison at Avenal, California, serving a sentence of twenty-five (25) years to life imposed by the Los Angeles County Superior Court upon Petitioner's conviction in December 1990 of first degree murder. (Pet. 1.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on March 10, 2008, finding Petitioner unsuitable for parole because he presented a risk to the public and society. (Id. at 6-7, 11.)

Petitioner raises the following claims: 1) the BPH's decision violated Petitioner's right to due process of law under the Fourteenth Amendment because there was no reliable evidence supporting the finding that Petitioner posed an unreasonable risk of danger to society if released from prison; 2) the BPH's decision violated Petitioner's right to due process of law because it did not reflect due consideration of the factors of parole suitability specified in state law, and it was arbitrary; and 3) decisions of the state courts upholding the BPH's decision were objectively unreasonable and thus deprived Petitioner of due process of law. (Pet. at 6-7.) Petitioner argues that the BPH did not consider favorable suitability factors, and the evidence concerning Petitioner's suitability actually supported a grant of parole.

The petition and the transcript of the parole proceedings reflect that Petitioner had an opportunity to submit documents and to testify and make a final statement at the parole hearing, and Petitioner received a statement of reasons for the BPH's finding of unsuitability. (Pet. 14; mot., doc. 10-1, 2, 5, 13, 15-87, 95-101, 111-21.) The reasons included the commitment offense, Petitioner's history, and a psychological evaluation. (Id. at 111-21.)

The Los Angeles County Superior Court denied Petitioner's petition for writ of habeas corpus on June 12, 2009, reasoning that there was some evidence to support the BPH's findings that the commitment offense was cruel and carried out in a calculated and dispassionate manner, Petitioner had not fully expressed remorse regarding the victim, and Petitioner had a significant history ...


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