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 (DOCS. 14, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE ACTION
Petitioner is a state prisoner proceeding with the assistance of counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 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 August 30, 2011. Petitioner filed opposition on September 14, 2011, and Respondent filed a reply on September 21, 2011. Pursuant to Local Rule 230(l), the motion is submitted on the record without oral argument.
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 exhibits provided by the parties, and there is no factual dispute as to the pertinent facts. 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 Habeas Rule 4.
Petitioner alleges that he is an inmate of the Avenal State Prison who is serving a sentence of twenty-seven (27) years to life imposed in the Superior Court of the State of California for the County of San Bernardino, on March 10, 1983, upon Petitioner's conviction of first degree murder and robbery with use of a firearm in violation of Cal. Pen. Code §§ 211, 187, and 12022.5. (Pet. 9.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on August 26, 2009, finding Petitioner unsuitable for parole. (Id. at 9, 13.)
Petitioner alludes to having raised in state court a claim that the denial of parole violated his right to due process of law because the decision was arbitrary and unsupported by some evidence that Petitioner presented a risk to public safety if released. (Pet. 13.) However, Petitioner recognizes that after the decision of the United States Supreme Court in Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011), this claim is foreclosed because it concerns evidentiary sufficiency under California's "some evidence" standard. (Pet. 14-15.) In Swarthout, the Court determined that California's "some evidence" rule is not a substantive federal requirement, and correct application of California's "some evidence" standard is not required by the federal Due Process Clause. Id. at 862-63.
The sole claim raised in the petition before this Court is that Petitioner's due process right to an impartial tribunal at his parole suitability hearing was violated by the BPH's bias.
Petitioner alleges that he was denied parole on five occasions. Although he acknowledges that the reasons for denial are not at issue because such review is foreclosed by Swarthout v. Cooke, Petitioner asserts that the reasons for denial of his parole were "talismanic and arbitrary." (Pet. 9:22-24.)
Reference to the transcript of Petitioner's parole hearing reflects that Petitioner waived his right to review his "C-File" before the hearing, appeared at the hearing, chose to represent himself, submitted documents to the BPH, answered extensive questions, had an opportunity to clarify the record, made a statement to the BPH in support of his application, and was present when the BPH explained the reasons for the finding that Petitioner was unsuitable for parole. (Pet., Ex. 11, 1, 3, 10, 1-51, 58-59, 61-72.) At the start of the hearing, Petitioner stated he had no preliminary objections. (Id. at 9.) Petitioner did not enter any objection or seek any relief from the panel on the ground of bias or unfairness of either the BPH or the specific panel members who presided over his hearing.
Petitioner committed the murder of a gas station attendant to show his gang associates that he was "bad" and was doing the things they were doing. (Id. at 13.) When Petitioner asked for money, the victim grabbed Petitioner's shotgun, and after a struggle, Petitioner shot the man. (Id.) Petitioner denied having rifled through the dead victim's pockets, as a witness had observed. (Id. at 22-24.) Petitioner disposed of the gun and fled. (Id. at 25.) Petitioner admitted that when he killed the victim, he had been under the influence of heroin, alcohol, weed, PCP, and a pill. (Ex. 11, 11.) Petitioner's criminal history included previous juvenile adjudications of battery and robbery, multiple instances of driving while intoxicated and without a license, and being under the influence of an opiate. (Id. at 29-30.)
The BPH denied parole on the basis of weighing the considerations provided in title 15 of the California Code of Regulations, relying on the callous, atrocious, and cruel nature of the offense; the vulnerability of the victim; the Petitioner's prior criminality; his unstable social history of gang activity and failure on probation; his continued lack of insight and minimization of his responsibility for the offense by claiming that the victim grabbed the gun; and a psychological report that was not totally supportive of release. The BPH expressly concluded that although Petitioner had controlled his behavior in prison for many years, completed four units of a literacy program, earned a GED, completed multiple rounds of vocational training, participated in AA and NA when available, and developed realistic parole plans, the factors of unsuitability nevertheless "heavily" outweighed the positive aspects of Petitioner's case. (Ex. 11, 61-72.)
Petitioner argues that the state of California has failed to
articulate, interpret, and construe Cal. Pen. Code § 3041, the
California statute governing parole, in a manner that would avoid
gross misapplication of the statute by the BPH because the BPH has
reversed the "presumptive liberty interest in parole" by making a
grant of parole the exception and not the rule, thereby unfairly and
unconstitutionally depriving life prisoners of their liberty interests
and rendering the parole suitability hearings per se invalid. (Pet.,
10:19-23.) Petitioner alleges that the outcome of the proceedings are
preordained "to an unconstitutional degree by an institutionalized
bias against the granting of parole." (Id. at 10:25-26.) Petitioner
argues that the BPH construes § 3041 to presume that life prisoners
are unsuitable for parole, and it "engages a sub rosa
policy against granting parole and uses sub rosa
criteria that are not valid under the statute or promulgated
under the pertinent administrative procedures in Cal. Govt. Code §
11340.5." (Id. at 11:9-12.) Petitioner contends that the policy
results in the creation of an institutionalized bias against granting
parole that is unconstitutional in light of the presumptive liberty
interest in parole stated in Cal. Pen. Code § 3041. (Id. at
Petitioner submitted extensive exhibits which demonstrate that in the last twenty years, the percentage of life prisoners found suitable for parole has decreased, and the time spent in custody before release on parole has ...