FINDINGS AND RECOMMENDATIONS
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 was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c)(17). Petitioner claims that the Board of Parole Hearings ("Board") violated his equal protection and due process rights by delaying his initial parole consideration hearing by seven years. Petitioner also claims prison officials violated his due process rights in three separate prison disciplinary actions. Respondent moves to dismiss this action on the grounds the claims that are successive, moot, untimely, and/or non-cognizable as based on state law. For the reasons stated below, the court recommends that respondent's motion to dismiss be granted. This court has authority under Rule 4 of the Rules Governing Section 2254 Cases 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 an answer, on the same grounds. See, e.g., O'Bremski v. Maass, 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 Cir. 1989) (using Rule 4 as the procedural vehicle to review a motion to dismiss for state procedural default).
I. Claims Regarding Delay of Initial Parole Consideration Hearing
Respondent contends petitioner's claims regarding the delay of his initial parole consideration hearing should be dismissed as successive, moot, untimely, and non-cognizable as based on state law.Mot. at 2. The court first addresses respondent's jurisdictional argument that petitioner's claims regarding the delay of his initial parole consideration hearing must be dismissed as successive.
A petition is second or successive if it makes "claims contesting the same custody imposed by the same judgment of a state court" that the petitioner previously challenged, and on which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive petition in a district court, a petitioner must obtain from the appellate court "an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. 147.
Before commencing this action, petitioner filed a prior federal action in this district. See Mot., Ex. 1 (petitioner's March 19, 2009 petition filed in Johnson v. Yates, Case No. CIV F-09-01355-OWW-SMS). In that action, petitioner claimed the Board violated his due process and equal protection rights when it delayed his initial parole consideration hearing by seven years. Id. The court dismissed petitioner's challenge as barred by the statute of limitations, and as failing to state a cognizable constitutional claim. Mot., Ex. 2 (May 14, 2010 Order). The district court's dismissal of the earlier filed petition constitutes a decision on the merits. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) ("[D]ismissal of a habeas petition as untimely constitutes a disposition on the merits and . . . a further petition challenging the same conviction [is] 'second or successive' for purposes of 28 U.S.C. § 2244(b).").
Since petitioner previously challenged the seven year delay of his initial parole consideration hearing in a federal habeas corpus petition, which was decided in its merits, the claim, raised again in this action, is second or successive. Petitioner offers no evidence that the appellate court has authorized this court to consider a second or successive claim. This court therefore lacks jurisdiction to consider petitioner's challenge to the delay in his initial parole consideration hearing. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam). Accordingly, the court will not address respondent's alternative arguments that the claim is moot, untimely, and/or non-cognizable.
In his opposition, petitioner contends that this claim is not successive because he filed the petition in this case after finally receiving his initial parole consideration hearing on June 4, 2009. Dckt. No. 21 at 2-3. Petitioner argues that he has a "newly rippenned [sic] claim" now that he has had his initial parole consideration hearing because: (1) the Board did not provide him with an adequate remedy for the unjustified delay of his initial hearing; and (2) the Board violated his rights at his initial parole hearing by applying Marsy's Law.*fn1 Id. at 3.
Petitioner's complaint that the Board failed to properly remedy the seven year delay does not save the underlying claim -- that his rights were violated because of the seven year delay -- from being successive. As discussed above, petitioner previously sought federal habeas relief on this claim, and the court denied the claim on its merits. Petitioner must obtain authorization from the appellate court before this court can consider a petition raising this claim for the second time.
Petitioner's argument regarding application of Marsy's Law at his initial parole consideration hearing also does not save the claim regarding the seven year delay from being successive. Petitioner did not identify a claim based on Marsy's Law as a ground for relief in his petition. See Dckt. No. 1 at 2-4 (stating grounds for relief); see also id. at 6 (posing the question of "[w]hether the Board violated petitioner's constitutional rights, where he was subjected to Proposition 9: Marcy's Law at a hearing that was 7 years late," but not identifying any constitutional right or claim based on application of Marsy's Law). Rather, petitioner argued that if he had received a timely initial parole consideration hearing, Marsy's Law, enacted in 2008, would not have been applied to him and his second parole consideration hearing would have only been deferred by one year, not five. Dckt. No. 1 at 17-19. Thus, petitioner's requested relief based on the seven year delay included a request for a court order changing the Board's five year parole denial to a one year parole denial. Id. at 7, 17-19. The petition did not, however, state a claim for relief based on the Board's application of Marsy's Law at the 2009 hearing. If petitioner wishes to pursue federal habeas relief on the ground the Board violated his constitutional rights at his June 4, 2009 initial parole consideration hearing, either by applying Marsy's Law or in some other way aside from the seven year delay, he must file a new petition raising those claims. See Rule 2(e), Rules Governing § 2254 Cases (petitioner who seeks relief from multiple judgments must file a separate petition as to each judgment).
II. Claims Regarding 2007 Prison Disciplinary Proceedings (Disobeying An Order)
Petitioner claims his due process rights were violated when he was disciplined in 2007 at California State Prison, Solano, for refusing an order to double cell because (1) state regulations did not prohibit his conduct and (2) he was denied a witness at his disciplinary hearing. Dckt. No. 1 at 2, 8-10; see also id. at 26-30 (October 6, 2007 Rules Violation Report). Respondent argues both claims are untimely, and the claim regarding whether petitioner's conduct was prohibited under state regulations is not cognizable. Mot. at 4.
The court finds that petitioner's claims regarding the 2007 prison disciplinary proceedings are untimely. The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(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 ...