The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS and RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
On September 28, 2011, petitioner filed the instant petition with the
United States District Court for the Northern District of California,
and it was transferred to this court on October 17, 2011. Petitioner
is currently incarcerated at High Desert State Prison following his
1979 conviction for murder. See Doc. No. 1, pp. 2, 43.*fn1
In March 2009, the California Board of Prison Terms found
petitioner unsuitable for parole, and scheduled his next parole
consideration hearing for three years after the 2009 denial. See id.
Petitioner raises the following challenges to the BPT's decision: (1) that petitioner was arrested in 1978 (June 12, 1978 given as the date of the crime as well) and the sentencing laws in effect at that time mandate that petitioner be released (see, e.g., Doc. No. 1 at p. 4 ,¶8; p. 19, ¶12); (2) that the BPT improperly evaluated petitioner's suitability for parole under sentencing laws which did not go into effect until after petitioner's arrest (see, e.g., Doc. No. 1 at p. 3, ¶¶5-6; p. 5, ¶¶10-11; p. 11, ¶ 2; p. 24, ¶2); and (3) that the BPT improperly denied petitioner's parole for three years (see, e.g., p. 3, ¶5). Petitioner seeks, inter alia, a declaratory judgment and an injunction forcing the BPT to evaluate petitioner's parole under the appropriate law and to set a release date. See, e.g., Doc. No. 1 at p. 4, ¶7; p. 36, ¶¶1-3.
For the reasons outlined below, the petition is dismissed because it does not present cognizable claims for relief, and no cognizable claim could be raised if leave to amend were granted. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
A. Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases provides, in pertinent part:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. See Jarvis v. Nelson, 440 F.2d at 14.
B. Failure to State a Cognizable Claim
Parole Suitability Petitioner's first and second claims for relief are related. Plaintiff argues that, based on the law in effect at the time of his arrest, the BPT has incorrectly applied a "suitability" determination to his release calculation. See, e.g., Doc. No. 1 at p. 3, ¶6; p. 11, ¶2. Petitioner argues that "suitability" determinations are reserved for those prisoners sentenced under the "indeterminate" scheme in effect prior to his arrest. See, e.g., Doc. No. 1 at p.5, ¶11; p. 12, ¶3. Petitioner argues that, because he received a sentence under the determinate scheme, the BPT's continued use of suitability criteria essentially turns his sentence into one under the new scheme created by the Briggs Initiative, passed by California voters in 1978.*fn2 See, e.g., Doc. No. 1 at p. 5, ¶10; p. 11, ¶1, p. 26, ¶8.
Petitioner's arguments are factually incorrect. Under the Determinate Sentencing Act (DSA) in effect at the time of petitioner's arrest*fn3 , a straight life sentence, as well as a sentence of some number of years to life, is an indeterminate sentence. See People v. Felix, 22 Cal. 4th 651, 657-59 (2000). Prisoners, like petitioner, sentenced to indeterminate terms under the DSA were to be released on parole if the BPT determined that release was appropriate. See, e.g., People v. Jefferson, 21 Cal. 4th 86, 92 (1999); In re Caswell, 92 Cal. App. 4th 1017, 1026 (2001) (Board is vested with exclusive authority to decide whether a life prisoner is suitable for parole).
Accordingly, the use of suitability criteria is not limited to those prisoners sentenced under the pre-1977 indeterminate sentencing scheme, or to those arrested after passage of the Briggs Act in 1978. See In re Stanworth, 33 Cal. 3d 176, 183 (1982) (under both indeterminate and determinate sentencing rules, life prisoner must be found suitable for parole before parole date is set). Petitioner does not cite, and this court has not found, any authority that, under the DSA as initially enacted, life prisoners were entitled to automatic release upon completion of their minimum term. See In re ...