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Feaster Foster v. Warden James D. Harley

June 17, 2011

FEASTER FOSTER,
PETITIONER,
v.
WARDEN JAMES D. HARLEY,
RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS THE PETITION (DOCS. 12, 1, 2)

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOCS. 1, 2), DISMISS MOTION AS MOOT (DOC. 10),

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 the Respondent's motion to dismiss the petition, which was filed on March 23, 2011. Petitioner filed an opposition on April 11, 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.

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 to be 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 in the petition that he was an inmate of the Avenal State Prison at Avenal, California, serving a sentence of fifteen (15) years to life imposed by the Fresno County Superior Court on October 14, 1994, upon Petitioner's conviction of second degree murder in violation of Cal. Pen. Code § 187. (Pet. 1, 7-9.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on March 4, 2009, finding Petitioner unsuitable for release on parole for three years. (Pet. 13.)

Petitioner raises the following claims in the petition: 1) the BPH's decision that Petitioner posed a risk of danger to society was not supported by some evidence and thus violated Petitioner's right to due process of law under the Fourteenth Amendment; 2) application of Proposition 9 to impose a three-year deferral of Petitioner's next parole hearing violated the Ex Post Facto Clause; 3) application of Proposition 9 to Petitioner to impose a three-year deferral of Petitioner's next parole suitability hearing violated Petitioner's right to due process of law under the Fourteenth Amendment by abrogating the terms of his plea agreement; and 4) state court decisions upholding the BPH's determination failed to apply California's "some evidence" standard and constituted an unreasonable determination of the facts in light of the evidence in the record. (Pet. 12-13.)

Petitioner alleges that at his initial parole consideration hearing held on October 29, 2003, parole was denied for three (3) years. Petitioner's next parole suitability hearing was held on December 19, 2006, and the BPH denied parole for two (2) years. (Pet. 32.) On March 4, 2009, at the hearing which is the subject of this petition, parole was denied for three (3) years under Proposition 9. (Id. at 33.)

The transcript of the hearing held on March 4, 2009 (doc. 2, 134-223), which was submitted by Petitioner with the petition, shows that Petitioner attended the hearing, was given an opportunity to correct or clarify the record and submit documentation, gave sworn testimony to the BPH regarding numerous factors of parole suitability, and made a statement on his own behalf. (Id. at 134, 137, 139, 141-208.) Petitioner's allegations reflect that at the hearing, Petitioner received a statement of the BPH's reasons for finding that Petitioner presented a danger to the public and thus was unsuitable for parole. The reasons included the commitment offense and Petitioner's prior criminality, previous failures on grants of probation and in juvenile hall, gang activity, drug and alcohol use, dropping out of school, minimization of his offense, and lack of insight. (Pet. 34-35; doc. 2, 209-23.)

The Fresno County Superior Court denied Petitioner's petition for writ of habeas corpus on September 8, 2009, reasoning that there was some evidence to support the BPH's findings concerning the commitment offense, Petitioner's lack of insight and remorse, and his minimization of the crime. Further, application of Proposition 9 had not increased Petitioner's sentence. Finally, Petitioner had failed to allege facts showing that his plea bargain contained any terms stating that he would be entitled to a parole hearing every year; Petitioner had not shown any effect of Proposition 9 on his plea bargain because under previous law (Cal. Pen. Code § 3041.5), the BPH had the discretion to deny parole for as much as five years. (Pet. 51-54.)

The California Court of Appeal, Fifth Appellate District denied Petitioner's petition for writ of habeas corpus on February 3, 2010, with citations to state court authority concerning the application of the "some evidence" standard. (Pet. 56.) The California Supreme Court denied a petition for review on March 24, 2010. (Pet. 58.)

III. 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 ...


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