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Michael William Irwin v. Ralph Diaz

July 11, 2012


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


Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on June 27, 2012 (doc. 5). Pending before the Court is the petition, which was filed on June 15, 2012.

I. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires that the Court 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; the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas 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, 1042-43 (9th Cir. 2001). A petition for 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).

II. Background

Petitioner alleges that he is an inmate of the California Substance Abuse and Treatment Facility (CSATF) at Corcoran, California, who is serving a sentence of seven years to life plus four years imposed in the San Bernardino County Superior Court in 1988 upon Petitioner's conviction of attempted first degree murder and second degree robbery with grave bodily injury and use of a deadly weapon in violation of Cal. Pen. Code §§ 664, 187, 212.5(b), 12022.7, and 12022(b). (Pet. 1.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on November 22, 2010, finding Petitioner unsuitable for parole for three years. (Id. at 4.)

Petitioner's allegations and the transcript of the parole hearing submitted with the petition reveal that Petitioner attended the parole hearing before commissioners of the BPH on November 22, 2010, with his counsel, who advocated on his behalf; gave sworn responses to the BPH about various suitability factors; and made an extensive statement on his own behalf concerning his suitability for parole. (Id. at 69, 71-72, 77-113, 122-25.) At the commencement of the hearing, Petitioner's counsel acknowledged that all Petitioner's rights had been met, and counsel had received all pertinent documentation. (Id. at 76.)

The transcript of the hearing also reflects that Petitioner was present at the conclusion of the hearing when the BPH explained its decision that Petitioner was not suitable for parole. It found that Petitioner would still pose an unreasonable risk of danger if released from prison, relying on the nature of the commitment offense (in an isolated location, Petitioner stabbed the victim three times, including once in the back, and stole his car); Petitioner's criminal history (two attempts at probation after petty theft, unauthorized entry, and burglary); Petitioner's lack of insight into the significance of his substance abuse history and the need for ongoing treatment, as documented in a psychological evaluation and reflected by the extent of Petitioner's participation in programs; and Petitioner's failure to take responsibility for the crime, his minimization of the commitment offense, and his lack of insight into the crime based on the inconsistency of the other evidence with Petitioner's version of the events. (Id. at 127-40.)

The Superior Court of the State of California, County of San Bernardino denied Petitioner's petition for writ of habeas corpus because there was some evidence to support the findings, including the nature of the offense, the absence of an expression of genuine remorse, and Petitioner's failure to gain insight into the gravity of his offense or into the underlying behavior that led to it. (Id. at 12-15.) The Court of Appeal of the State of California for the Fourth Appellate District (CCA) summarily denied Petitioner's petition for a writ of habeas corpus on September 8, 2011. (Id. at 11). The Supreme Court of the State of California summarily denied a petition for writ of habeas corpus on March 14, 2012. (Id. at 10.)

Petitioner contends that the BPH failed to consider all the relevant documented information concerning his accomplishments, gains, and successes in prison. Petitioner further argues that the factors relied upon by the BPH were insufficient because they failed to establish a connection or nexus between the articulated factors and Petitioner's dangerousness. Petitioner contends that these shortcomings resulted in a violation of Petitioner's right to due process of law. Petitioner argues that the state court decisions upholding the denial of parole were unreasonable applications of clearly established federal law.

III. Failure to State a Cognizable Claim 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 in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

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).

The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures with respect to the ...

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