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. 21, 1, 7)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITH
PREJUDICE (DOCS. 1, 7),
DISMISS PETITIONER'S MOTIONS AS
MOOT (DOCS. 23-25), AND
DECLINE TO ISSUE A CERTIFICATE
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. 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 17, 2011. Respondent contends that the petition is untimely and fails to set forth a cognizable claim. Petitioner filed an opposition to the motion on March 3, 2011, which was styled as a "Motion of Opposition." No reply was filed.
I. Proceeding by a Motion to Dismiss
Respondent has filed a motion to dismiss the petition on the ground that Petitioner filed his petition outside the one-year limitation period provided for by 28 U.S.C. § 2244(d)(1). Respondent also argues that Petitioner failed to state a cognizable claim.
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, Respondent's motion to dismiss addresses the untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). The material facts pertinent to the motion are mainly found in copies of the official records of state judicial proceedings which have been provided by Respondent and Petitioner, and as to which there is no factual dispute. Because Respondent has not filed a formal answer, and because Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
Petitioner alleged that he was an inmate of Pleasant Valley State Prison (PVSP) serving a sentence of fifteen (15) years to life imposed by the Los Angeles Superior Court in August 1982 upon his conviction of second degree murder in violation of Cal. Pen. Code § 187. (Pet. 3.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) finding Petitioner unsuitable for parole after a hearing held on August 1, 2006, because Petitioner presented a danger to society if released. (Id. at 16.)
Petitioner raises the following claims in the petition: 1) the BPH abused its discretion by concluding that Petitioner would pose an unreasonable risk of danger to society, 2) there was no evidence of Petitioner's callous disregard for human life, 3) the BPH's continued denial of release on parole constituted cruel and unusual punishment, and 4) the BPH's continued denial of parole violated the Ex Post Facto Clause. (Id. at 6-7.) Petitioner contends that the evidence of his rehabilitation that was before the BPH actually supported a finding that if released, Petitioner would not present an unreasonable risk of danger to society.
The transcript of the hearing held on August 1, 2006, reflects that Petitioner attended the hearing with counsel, was given an opportunity to correct and clarify the record, discussed with the BPH various factors of parole suitability, made a personal statement in favor of parole in addition to his counsel's statement, and was present when the BPH announced its decision and the reasoning underlying it. (Mot., Ex. 1, doc. 21-1, 2, 5, 10, 13, 15-43, 44-47, 48-57.) The BPH's reasons for concluding that Petitioner posed an unreasonable danger to public safety and should not receive consideration for release again for four years included the especially violent and cruel commitment offense and Petitioner's criminal history, abuse of drugs and resultant psychiatric problems, limited programming and disciplinary history during incarceration, failure to develop a marketable skill, and lack of residential plans for release. (Id. at 48-57.)
On June 18, 2009, Petitioner filed a petition for writ of habeas corpus in the Los Angeles Superior Court, which denied the petition on October 16, 2009, on the ground that there was some evidence to support the BPH's findings concerning the commitment offense, including Petitioner's significant, criminal and serious misconduct during incarceration, and the inadequacy of Petitioner's rehabilitative efforts. (Mot., Ex. 2, doc. 21-2, 60-62.)
Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District, on November 11, 2009, *fn1 which the court denied on December 2, 2009. (Mot., Exs. 3-4, doc. 21-2, 64-75; doc. 21-1, 98.) Thereafter, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on December 15, 2009. (Mot., Ex. 5, doc. 21-1, 77-89.)
Petitions for writ of habeas corpus filed in this Court were dismissed without prejudice for failure to exhaust state court remedies on February 25, 2008 (petition filed on October 22, 2007, in case no. 1:07-cv-01535-AWI-SMS-HC) and March 4, 2008 (petition filed on February 4, 2008, in case no. 1:08-cv-00173-LJO-SMS-HC). (Mot., Ex. 5, doc. 21-1, 90-91; ex. 7, doc. 21-2, 138-42; ex. 8, doc. 21-1, 143-45.)
On January 22, 2009, the United States Court of Appeals for the Ninth Circuit denied as unnecessary an application for authorization to bring a successive § 2254 petition. (Id. at 92-93; ex. 7, doc. 21-1, 138-40.) The denial was specifically without prejudice to Petitioner's renewing his habeas petition before the District Court. Id.
On June 18, 2009, Petitioner filed a second petition for writ of habeas corpus in the Superior Court, which the court denied on October 16, 2009, on the ground that the record contained some evidence supporting the BPH's findings. (Id. at 94-97.)
On November 17, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, which the court denied on December 2, 2009. (Id. at 98.)
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on December 15, 2009, which the court denied on June 9, 2010. (Exs. 5-6, doc. 21-1, 87, 78-137.) The petition in the present case was filed on June 14, 2010. *fn2
III. Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA applies to all petitions for writ of habeas corpus filed after the enactment of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9 th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997).
Because Petitioner filed his petition for writ of habeas corpus on June 14, 2010, the AEDPA applies to the petition.
The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, subdivision (d) reads:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...