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 DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS LEAVE TO AMEND , (DOC. 1)
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 February 3, 2011. Petitioner filed an opposition to the motion on February 18, 2011. No reply was filed.
Petitioner alleged in the petition that he was an inmate of the Avenal State Prison located at Avenal, California, serving a sentence of seven (7) years to life imposed by the Tehama County Superior Court upon Petitioner's conviction in 1996 of attempted murder. (Pet. 1.)
Petitioner challenges the decision of California's Board of Parole Hearings (BPH) finding Petitioner unsuitable for parole after a hearing held on April 3, 2009. (Pet. 17.) Although Petitioner raises various grounds, his arguments reduce to one essential claim based on the Due Process Clause of the Fourteenth Amendment. Petitioner argues that the BPH's finding that he was unsuitable and its determination that the next suitability hearing would not be held for five years lacked the support of some evidence; the evidence of pertinent parole suitability factors actually supported a grant of parole. The BPH erroneously relied on unchanging factors because there was clear evidence of Petitioner's rehabilitation. Further, Petitioner was entitled to release because the facts of his case compared favorably with those presented in other, specified cases reported in California. Petitioner also contends that the BPH failed to give him an individualized consideration of the pertinent data and factors. Finally, Petitioner challenges the decision, and the procedures followed in reaching the decision, of the Tehama County Superior Court in denying Petitioner's petition for habeas corpus and upholding the BPH's decision, as well as the decisions of higher state courts declining to grant relief. (Pet. 1-51.)
In support of the motion to dismiss, Respondent filed the transcript of the hearing held on April 3, 2009. (Mot., Ex. 1, doc. 10-1, 1-48.) The transcript reflects that Petitioner appeared at the hearing (Mot., Ex. 1, doc 10-1, 5, 1-48), received documents before the hearing and was given an opportunity to correct of clarify the record (id. at 8-10), answered under oath the BPH's questions concerning numerous factors of parole suitability (id. at 10-31), and declined to make a personal statement (id. at 35). An attorney appeared, advocated, and made a closing statement on Petitioner's behalf. (Id. at 5, 9, 31-36.)
Further, Petitioner was present when the BPH stated its reasons for the decision that Petitioner continued to present a danger if released, which included the commitment offense, Petitioner's failure to take responsibility for his conduct or express remorse, his unstable social history, his lack of insight, and the prosecutor's opposition to his release. (Id. at 37-47.)
II. Failure to State a Cognizable
Due Process Claim 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 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 ...