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Gerald W. Dickson v. Warden

July 13, 2012

GERALD W. DICKSON,
PETITIONER,
v.
WARDEN, AVENAL STATE PRISON, RESPONDENT.



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

Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

On June 22, 2012, Petitioner filed the instant petition for writ of habeas corpus. (Doc. 1). Petitioner challenges the California court decisions upholding a May 12, 2010 decision of the California Board of Parole Hearings ("BPH") finding Petitioner unsuitable for parole. Petitioner claims the California courts unreasonably determined that there was some evidence that he posed a current risk of danger to the public if released on parole and that the BPH‟s decision was arbitrary and was not based on "some evidence" in the record.

I. Preliminary Screening of the Petition.

Rule 4 of the Rules Governing Section 2254 Cases 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 4 not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The 5 Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached 6 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 June 22, 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 thirty-eight-years-to-life imposed in the Fresno County Superior Court after Petitioner‟s 1983 convictions for the first degree murder of Ida Maria Husler and the robbery and sexual assault of Karen Bing. (Doc. 1, pp. 4-5). Petitioner does not challenge either his convictions or sentence; rather, Petitioner challenges May 12, 2010 decision of the BPH finding 2 him unsuitable for parole and its decision to wait ten years to schedule another parole suitability 3 hearing. (Doc. 1, p. 11) 4

Although the petition does not expressly articulate a claim, it recounts what Petitioner believes 5 is strong evidence supporting his parole suitability and weak evidence against it, including the BPH‟s 6 reliance in part upon Petitioner‟s determinate sentence in the Bing case. Accordingly, it is apparent 7 that Petitioner‟s claim contends that the BPH‟s decision is unlawful because it is not supported by 8 adequate, or "some," evidence, that it is arbitrary and that it ignores evidence of Petitioner‟s suitability 9 for parole.

A. Substantive Due Process Claims And California‟s "Some Evidence" Standard

As discussed more fully below, the claims in the petition sound exclusively in substantive federal due process and therefore are ...


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