The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO
DISMISS THE PETITION FOR FAILURE TO ALLEGE FACTS ENTITLING PETITIONER TO RELIEF
(DOCS. 21, 1)
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND, DECLINE TO ISSUE
A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS
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 served by mail on Petitioner and filed on September 27, 2011. Petitioner did not file opposition or notice of non-opposition to the motion.
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).
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 on the ground that Petitioner had not stated facts that would entitle him to relief in a proceeding pursuant to 28 U.S.C. § 2254. The material facts pertinent to the motion are to be found in the pleadings and in copies of the official records of state prison and judicial proceedings which have been provided by the parties, and as to which there is no significant 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, an inmate of the California Correctional Institution at Techachapi who is serving a twenty-year sentence, challenges his validation as an active gang member, which he alleges has resulted in his no longer receiving time credits. The Court's screening process has resulted in there being only one claim remaining in the petition, namely, that Petitioner received an unfair validation hearing because he was unable to attend an interview due to presence at another proceeding, which violated Petitioner's right to due process of law under the Fourteenth Amendment. (Pet. 4-5.)
Although Petitioner alleges that he was unable to attend an interview because he was engaged in another proceeding, Respondent has submitted documentation that shows that on March 21, 2008, Petitioner was given twenty-four hours' notification as to the gang validation proceedings and disclosure of the source items to be relied on in the validation process. (Mot., ex. 1, doc. 21, 6.) Petitioner was afforded the opportunity to interview and to refute the source items. The validation chronology specifically states:
On 03-24-08, Vallin was afforded the opportunity to interview and refute the source items. Vallin elected to provide a written response in the form of a 4 page single sided response to the source items. Vallin's written response was reviewed and considered by the IGI*fn1 and found that his claims have no merit and do not warrant further investigation. Vallin was assigned a Staff assistant for the purpose of Spanish to English translation for the initial notification and response portion of the validation process. (Id.) The chronology further reflects that all the evidence obtained in the investigation was forwarded to the OCS for consideration and acceptance for the validation of Petitioner as an associate of the Mexican Mafia prison gang. Id.
Included in the petition is a copy of a four-page "INMATE VALIDATION STATEMENT," in which Petitioner responded to the gang validation ...