FINDINGS & RECOMMENDATIONS
Petitioner, Oscar Gonzalez, is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner raises a due process challenge to the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his parole consideration hearing held on January 29, 2009. Respondent has moved to dismiss the petition on the grounds that it fails to state a claim cognizable in a federal habeas corpus petition. (Doc. No. 11.) For the reasons set forth below, the undersigned will recommend that respondents' motion to dismiss be granted.
Petitioner is confined pursuant to a 1982 judgment of conviction entered against him in the San Joaquin County Superior Court following his conviction on a charge of first degree murder. (Doc. 1 at 1.)*fn1 Pursuant to that conviction, petitioner was sentenced to twenty-five years to life in state prison. (Id.)
The parole consideration hearing that is placed at issue by the instant federal habeas petition was held on January 29, 2009. (Id. at 37.) The record before the court reflects that petitioner appeared at and participated in that hearing. (Id. at 38-117.) Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for three years as well as the reasons for that decision. (Id. at 118-130.) Specifically, in denying parole the Board reasoned that:
"We weighed heavily your prior criminal history, because although you have no juvenile record, you do have an adult record that's very serious,
You had gang activity in the Little Unity Street Gang, and it appears that you occupied a position of some leadership. You still do not acknowledge that position in any way, but your age would indicate and your performance in this commitment offense would indicate that you did, in fact, occupy a position of leadership.
The Panel also weighed very heavily your history in prison of 115s, which included most recently in 1995 mutual combat, it included trafficking in narcotics, under the influence of alcohol, possession of inmate manufactured alcohol, and you were in the SHU until the year 2003. So, the fact that you were in a gang in prison for a significant period of time, to your credit you debriefed, but the Panel weighed very heavily that participation in the gangs, which seemed to carry forward your lifestyle from the streets right into prison, and for a significant period of time you continued to display negative behavior in prison."
Petitioner challenged the Board's 2009 decision to deny him parole in a petition for writ of habeas corpus filed in the San Joaquin County Superior Court. (Id. at 2-3.) That court denied the petition, finding that California's "some evidence" standard had been met by the Board in its decision. (Id. at 133.) Petitioner subsequently challenged the Board's 2009 decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the Third Appellate District. (Id. at 3.) The Court of Appeal summarily denied that petition. (Id. at 135.) Petitioner then filed a petition for review with the Supreme Court of California, which was also summarily denied. (Id. at 137.)
On November 18, 2010, petitioner filed his federal application for habeas relief in this court. Therein, petitioner contends that the Board's 2009 decision to deny him parole was not supported by "some evidence" that he posed a current danger to society if released from prison, as required under California law. (Id. at 7-17.)
Respondents move to dismiss the pending petition pursuant to Rule 4 of the Rules Governing §2254 Cases in the U.S. District Courts for failure to state a cognizable claim. Specifically, respondents argues that petitioner's claim challenging the merits of the Board's decision to deny him parole, is not cognizable in a federal habeas petition. Respondents rely on the United States Supreme Court's recent decision in Swarthout v. Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 862 (2011) for the proposition that the only federal due process rights that a California prisoner has at a parole hearing are: (1) an opportunity to be heard, and (2) a statement of the reasons why parole was denied.
This court has authority under Rule 4 to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." As a corollary to that rule, the court may also consider a respondent's motion to dismiss, filed in lieu of the answer, on the same grounds. (See O'Bremski v. Mass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Circ. 1989) (using Rule 4 as the procedural vehicle to review a motion to dismiss for state procedural default).
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not ...