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 (DOC. 22) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOCS. 22, 1), DISMISS PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE ACTION
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 18, 2011. Petitioner filed opposition on June 3, 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 United States 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.
Petitioner alleges that he was a resident of the Pleasant Valley State Prison (PVSP) located in Coalinga, California, within the Eastern District of California, serving a sentence of seven (7) years to life imposed in the Los Angeles Superior Court on January 17, 1984, upon Petitioner's conviction of kidnaping for the purpose of robbery, robbery with a firearm, credit card fraud, and receiving stolen property in violation of Cal. Pen. Code §§ 209(b), 211, 484(f)(2), 496, and 10222.5. (Pet. 1-2.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on May 7, 2008, finding Petitioner unsuitable for parole because if released, he would pose an unreasonable risk of danger to society and a threat to public safety. (Id. at 17.) Petitioner also challenges the decisions of the state courts upholding the BPH's denial of parole.
Petitioner raises the following claims in the petition: 1) the BPH violated Petitioner's right to due process of law by relying on erroneous information concerning the facts of the commitment offense; 2) the BPH denied Petitioner's right to due process of law by finding that the commitment offense was callous and cruel in the absence of supportive documentary evidence; 3) Petitioner's right to due process of law was violated when the BPH relied on disciplinary infractions that were from records of a prior prison term and were unrelated to the commitment offense, and failed to conduct a fact-finding process concerning the facts of the disciplinary offenses; 4) Petitioner's right to due process of law was violated by the BPH's consideration of offenses as to which sentences were stayed as part of his plea agreement in connection with the commitment offenses; 5) Petitioner's right to equal protection of the laws was violated by the BPH's consideration of nonviolent offenses that were stayed as part of his plea agreement in connection with the commitment offenses; 6) Petitioner's right to due process of law was violated because there was no evidence in the record supporting the BPH's finding that Petitioner presented a threat to public safety; and 7) the BPH failed to comply with Cal. Pen. Code §§ 3041 and 3041.5, state rules, and state regulations that seek to impose uniform terms for offenses of similar gravity because Petitioner's sentence has become longer than the maximum he would have received if he had lost at trial, and longer than sentences imposed on other inmates whose crimes were also considered callous and cruel. (Pet. 15, 17, 20-21.)
Petitioner further requested an evidentiary hearing in the portion of the petition that appears to be a copy of a previously filed petition for writ of habeas corpus in the California Supreme Court. It is not clear whether that request was directed to this Court, or was only directed to the state court. (Pet.14.)
The transcript of the BPH's decision of May 7, 2008, which was submitted with the petition, reflects that Petitioner was present when the reasons for the decision were stated. (Pet. 23-36.) It also supports a conclusion that Petitioner had been present earlier during the hearing because it reflects that "all parties [had] returned to the room" for the rendering of the decision. (Id. at 23.) Further, in its explanation of the decision, the BPH referred to Petitioner's testimony, his having been candid about his involvement with narcotics with the specific panel of the BPH that presided over the hearing, his response to a question posed by the BPH concerning his marketable skills, and his statements made that day, including a closing statement made to the BPH at the hearing. (Id. at 25, 31, 33-34.) It thus may be inferred that Petitioner attended the hearing and took the opportunity to testify and address the BPH. Petitioner also had an opportunity to seek clarification of the record to include a "GED" in his file. (Id. at 23-24.)
The BPH found Petitioner unsuitable based on the commitment offenses, the prosecutor's opposition to release, a psychological evaluation reflecting an anti-social personality disorder, and Petitioner's history of escalating criminal conduct, previous failures on probation and parole, limited programming and self-help in prison, extensive misconduct in prison, minimization of his criminal conduct, and lack of preparation for release. (Pet. 23-35.)
III. Failure to State a Cognizable Due Process Claim
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 petitioners] received due process.
Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly noted that California's "some evidence" rule is not a substantive federal requirement, and correct application of California's "some evidence" standard is not ...