The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, based on claims that a 2009 decision of the California Board of Parole Hearings, denying petitioner parole, violated petitioner's Fourteenth Amendment due process rights, and petitioner's rights under the federal Ex Post Facto Clause.
Pending before the court is respondent's motion to dismiss the petition (Dkt. No. 12), pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Rule 4"), on the ground that the petition fails to state a cognizable claim for relief. Rule 4 authorizes the summary dismissal of a habeas petition "[i]f it plainly appears from the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4; see O'Bremski v.Maass, 915 F.2d 418, 420 (9th Cir. 1990) ("[R]ule 4 . . . 'explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated'"), quoting Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir.1983).
Petitioner filed an opposition to respondent's motion to dismiss (Dkt. No. 13), and a request that this action be stayed on petitioner's ex post facto claim (Dkt. No. 14), both filings also contain a request for appointment of counsel.
For the reasons that follow, this court recommends that respondent's motion to dismiss be granted. Petitioner's requests for appointment of counsel are denied.
Petitioner is incarcerated at California State Prison-Solano ("CSP-SOL"), serving a sentence of fifteen years to life that commenced in 1995. Petitioner challenges the May 12, 2009 decision of the California Board of Parole Hearings ("Board"), denying petitioner parole, and deferring for a period of three years petitioner's next parole hearing. The May 2009 hearing was petitioner's fourth parole hearing. Petitioner claims that the Board's decision was arbitrary and capricious, and therefore violated his due process rights, because no reliable evidence demonstrated that petitioner presented a threat to society; petitioner asserts that the Board instead improperly relied on the nature of petitioner's commitment offense and his alleged lack of insight (Grounds One and Two). Petitioner also claims that the deferral of his next parole hearing for a period of three years violated the Ex Post Facto Clause (Ground Three). Finally, petitioner claims that the Shasta County Superior Court improperly denied his habeas petition on March 24, 2010, based on an unreasonable interpretation of the underlying facts and applicable law, and failed to address petitioner's ex post facto claim (Ground Four). Petitioner has exhausted his state court remedies in pursuing his due process and ex post facto claims.*fn1
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause, and then show that the procedures used to effect the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).
A protected liberty interest may arise from the Due Process Clause of the United States Constitution either "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). However, "a state's statutory scheme, if it uses mandatory language, 'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest."
See Shasta County Superior Court Petition, Case No. 10HB1604, Ground Four; see also id. at iii, 57-68 (Dkt. No. 21-1 at 7, 13, 79-90). Further, notwithstanding the summary denials of petitioner's subsequent petitions by the California Court of Appeal, and the California Supreme Court (see Exhs. F & G to the instant federal petition), this court is satisfied that petitioner presented both claims to each higher court. See (1) petition filed in the Court of Appeal for the Third Appellate District, Case No. CO64860, Ground Four; id. at iii, 57-68 (Dkt. No. 21-2 at 8, 15, 83-94); and (2) petition filed in the California Supreme Court, Case No. S183715, Ground 4; id. at iii, 57-68 (Dkt. No. 19 at 16, 24, 92-103).
However, petitioner's Ground Four contained in the instant federal petition, and raised for the first time before the Court of Appeal, is both unexhausted and fails to state a cognizable federal habeas corpus claim. Petitioner's challenges to the content and reasoning of the Shasta County Superior Court's decision are not independently cognizable; rather, petitioner's due process and ex post facto claims survive in this court because exhausted, irrespective of the superior court's rationale. Therefore, this court does not further address petitioner's Ground Four.
Greenholtz, 442 U.S. at 12; seealso Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a state's use of mandatory language ("shall") creates a presumption that parole release will be ...