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. 9, 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 OBJECTIONS DEADLINE: THIRTY (30) DAYS
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 7, 2011. Petitioner filed opposition to the motion on February 22, 2011. No reply was filed.
Petitioner alleged in the petition that he was an inmate of the Avenal State Prison at Avenal, California, serving a sentence of nineteen (19) years to life imposed by the San Bernardino County Superior Court upon Petitioner's conviction in 1983 of second degree murder with use of a gun and possession of marijuana and cocaine. (Pet. 1.) Petitioner challenges the constitutionality of the governor's rescission on October 5, 2009, of the previous decision of the California Board of Parole Hearings (BPH) granting parole to Petitioner on May 14, 2009. Petitioner argues that because there was no evidence in the record to support the governor's conclusion that Petitioner was a current danger if released, Petitioner suffered a violation of his rights to due process of law pursuant to the Fourteenth Amendment as well as the California Constitution. Petitioner also relies on California statutes, regulations, and case law concerning the determination of suitability for parole and application of the "some evidence" rule at parole hearings. (Id. at 10-13.) Petitioner argues that the evidence of his rehabilitation and other suitability factors supported a grant of parole, and that continued reliance on unchanging factors to deny parole deprived him of due process of law. Petitioner also challenges the decision of the San Bernardino Superior Court denying Petitioner habeas relief. (Id. at 19.)
Neither Petitioner nor Respondent provided the Court with a transcript of the proceedings before the BPH or official documentation of the governor's decision. However, it may be inferred from Petitioner's factual allegations in the petition that Petitioner was present at the hearing before the BPH. (See, e.g., pet. 8:17-22; 9:1-5; 13:6-13.) It may likewise be inferred from Petitioner's recitation of his own statements to the BPH at the 2009 hearing that Petitioner had an opportunity to be heard at the hearing before the BPH. (Pet. 13:5-11; 14:14-16.) The record also supports a clear inference that Petitioner received a statement of the BPH's reasons for granting parole (id. at 10:1-12) as well as the governor's reasons for his ultimate denial of parole (id. at 10:13-26; 11:11-21; 12:22-24; 13:3-4; 14:18-19).
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 received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.)
Swarthout, 131 S.Ct. 859, 862. The Court concluded that the petitioners had received the process that was due as follows:
They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied....
That should have been the beginning and the end of the federal habeas courts' inquiry into whether [the ...