The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that his due process rights were violated because his minimum eligible parole date ("MEPD") was June 15, 2007.
Pending before the court is respondent's motion to dismiss the petition for failure to state a federal claim for relief pursuant to Rule 4 of the Rules Governing § 2254 Cases. Petitioner filed an opposition, and respondent filed a reply. For the reasons stated below, the court recommends that respondent's motion to dismiss be granted.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, Rules Governing Section 2254 Cases; see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated"). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). "Summary dismissal is appropriate only where the allegations are vague [or] conclusory or palpably incredible, . . . or patently frivolous or false." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (internal quotations and citations omitted).
A life prisoner's MEPD is the "earliest date on which a . . . life prisoner may be legally released on parole." See Cal. Code Regs., tit. 15, § 3000; see also Cal. Code Regs., tit. 15, § 2000(b)(67). The California Department of Corrections and Rehabilitation determines the MEPD. See Cal. Code Regs., tit. 15, § 2400. Conversely, "[t]he length of time a prisoner must serve prior to actual release on parole is determined by the board [Board of Prison Hearings or "BPH"]." Id.
California law provides that, one year prior to a prisoner's MEPD, a BPH panel shall meet with the prisoner and shall set a release date "unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." Cal. Penal Code § 3041(a). Thus, the prisoner's MEPD is the basis for the timing of the initial suitability hearing.
Following a parole denial, the BPH "shall hear each case annually thereafter," except that the BPH may schedule a subsequent hearing up to five years "after any hearing at which parole is denied" if the prisoner has been convicted of murder and the BPH finds "that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing." Cal. Penal Code § 3041.5(b)(2).
Following a finding of parole suitability for an inmate convicted of a murder committed on or after November 8, 1978, the BPH sets a base term "established solely on the gravity of the base crime, taking into account all of the circumstances of that crime." Cal. Code Regs., tit. 15, § 2403(a). The BPH sets a base term by taking into account the "matrix" of suggested base terms, circumstances in aggravation and mitigation, and adjustments for enhancements or other offenses. See Cal. Code Regs., tit. 15, § 2403-11. However, the BPH may impose a base term other than one provided in the matrix "if justified by the particular facts of the individual case. . . ." Id.
Therefore, petitioner's MEPD of June 15, 2007, did not dictate petitioner's release date, but rather provided the time frame for holding petitioner's initial parole suitability hearing, which was properly held on August 23, 2006. (Dkt. No. 16 at 6.) As argued by respondent, petitioner's release on parole is a matter of state law, which is not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). As the Alameda County Superior Court stated, petitioner will be released on parole when the BPH determines that petitioner is suitable for parole because he is no longer an unreasonable risk to the public. (Dkt. No. 15-1 at 13, citing In re Lawrence, 44 Cal.4th 1181 (2008).)
Thus, petitioner's claim that his due process rights were violated because he was not released from prison on or about June 15, 2007, based on his MEPD, fails to state a federal claim for relief. To the extent petitioner claims his due process rights were violated during the August 23, 2006 parole hearing, even assuming petitioner had exhausted his state court remedies as to such a claim, or that the claim was properly, or timely-filed, petitioner is mistaken.
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 attendant upon the deprivation were not ...