The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO SUMMARILY DISMISS PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 10, 2012, Petitioner filed the instant petition for writ of habeas corpus in the United States District Court for the Central District of California. (Doc. 1). On May 21, 2012, the case was transferred to this Court. (Doc. 5).
Petitioner challenges the California court decisions upholding a September 9, 2010, decision of the California Board of Parole Hearings ("BPH"), finding Petitioner unsuitable for parole. (Doc. 1, p. 19). Petitioner raises the following claims: (1) the California courts violated Petitioner‟s federal due process rights in concluding that some evidence was presented to show that he posed a current risk of 2 danger to the public if released on parole; (2) the BPH decision violated due process when the Board 3 failed to set a hearing date as mandated by state law; (3) the BPH‟s decision misapplied California 4 Penal Code § 3041.5, thereby violating federal ex post facto guarantees. 5
I. Preliminary Screening of the Petition.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 7 if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 8 not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The 9 Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O‟Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th cir. 1990). Habeas Rule 2( c) requires that a petition (1) specify all grounds of relief available to the Petitioner; (2) state the facts supporting each ground; and (3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O‟Bremski, 915 F.2d at 420. Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 F.2d at 491.
Further, 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. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001).
II. Failure to State a Claim Cognizable Under Federal Habeas Corpus
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on May 10, 2012, and thus, it is subject to the provisions of the AEDPA.
Here, Petitioner alleges that he is an inmate of the California Department of Corrections and Rehabilitation who is serving a sentence of 25 years-to-life imposed in the Santa Barbara County 3 Superior Court after Petitioner‟s 1983 conviction for first degree murder with use of a firearm. (Doc. 4 1, p. 6). Petitioner does not challenge either his conviction or sentence; rather, Petitioner challenges 5 the September 9, 2010 decision of the BPH finding him unsuitable for parole. 6
A. Substantive Due Process Claims And California‟s "Some Evidence" Standard
As discussed more fully below, Ground One in the petition sounds exclusively in substantive 8 federal due process and therefore is not cognizable in these proceedings. 9
The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution." 28 U.S.C. § 2254(a) states that the federal courts shall entertain a petition for writ of habeas corpus only on the ground that the petitioner "is in custody in violation of the Constitution or 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, 120 S.Ct. 1495 (2000); Wilson v. Corcoran, 562 U.S. ___, 131 S.Ct. 13, 16 (2010); see also, Rule 1 to the Rules Governing Section 2254 Cases in the United States District Court. The Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody . . ." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of his claim in state court resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1), (2).
Because California‟s statutory parole scheme guarantees that prisoners will not be denied parole absent some evidence of present dangerousness, the Ninth Circuit Court of Appeals has held that California law creates a liberty interest in parole that may be enforced under the Due Process Clause. Hayward v. Marshall, 602 F.3d 546, 561-563 (9th Cir.2010); Pearson v. Muntz, 606 F.3d 606, 608-609 (9th Cir. 2010); Cooke v. Solis, 606 F.3d 1206, 1213 (2010), rev'd, Swarthout v. Cooke, ___ U.S.___, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). The Ninth Circuit instructed reviewing federal 2 district courts to determine whether ...