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Anthony Bazurto v. M. Stainer

March 8, 2012

ANTHONY BAZURTO,
PETITIONER,
v.
M. STAINER, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION (DOC. 9)

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1) AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se with a petition for a 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 the Respondent's motion to dismiss the petition for failure to state facts that would entitle Petitioner to federal habeas corpus relief. The motion was filed on December 19, 2011, along with a complete transcript of the pertinent state parole proceedings. Petitioner filed an opposition on January 10, 2012, and Respondent replied on January 12, 2012. 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).

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 contained in the pleadings and in copies of the official records of state parole proceedings which have been provided by the parties, and as to which there is no 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.

II. Background

Petitioner alleges that he is an inmate of the California Correctional Institution (CCI) in Tehachapi, California, serving a sentence of seventeen years to life for convictions suffered in October 1981 of murder with the use of a firearm and assault with a deadly weapon. (Pet. 1.) Petitioner challenges the denial of his release on parole for seven (7) years by California's Board of Parole Hearings (BPH) after a hearing held on April 6, 2009, at CCI.

On October 19, 2011, the Court dismissed several claims in the petition without leave to amend. *fn1 The petition contains the following claims: 1) at the hearing, Petitioner was not permitted to present all relevant documents, including documents showing rehabilitative efforts and readiness for parole, in support of his suitability for parole due to prison officials' confiscation of Petitioner's personal property on March 18, 2009, which violated his right to due process of law pursuant to the Fifth and Fourteenth Amendments; and 2) the failure to permit Petitioner to present the documents violated Petitioner's right to equal protection of the laws guaranteed by the Fifth and Fourteenth Amendments.

III. Due Process Violation

Petitioner contends that when he was not permitted to present the documentation, he was deprived of an opportunity to show that he had followed the recommendations made by the BPH at his previous hearing in 2007, which were to stay disciplinary-free, learn a trade, get therapy as available, earn positive reports, work toward reducing his custody level, and participate in self-help. (Mot., doc. 9-1, 32.)

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).

Title 28 U.S.C. § 2254 provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...


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