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Steven W. Rose v. Gary Swarthout

July 18, 2012



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decisions of the Board of Parole Hearings (hereafter, "Board") to allegedly "continuously" deny him parole. Before the court is respondent's motion to dismiss the petition on the grounds that petitioner has not presented any cognizable claim to federal habeas relief and that petitioner has failed to comply with the applicable statute of limitations and exhaustion requirements. Petitioner opposes the motion.


In 1990, petitioner was convicted of kidnaping for ransom, false imprisonment and residential burglary and was sentenced to a term of seven years to life imprisonment with the possibility of parole. (Doc. No. 1 at 25.)

According to the allegations of his petitioner for federal habeas relief, since 1996 petitioner has appeared at eight parole suitability hearings and at each such hearing he has been denied parole by the Board. (Id.) Petitioner's last such parole hearing was held on January 5, 2010. (Id.)

On December 11, 2008, petitioner filed a federal habeas petition challenging the Board's decisions denying him parole following his parole suitability hearing on February 5, 2008. See Rose v. Sisto, Case No. 2:08-cv-03012-MCE-DAD P. Respondent filed a motion to dismiss the petition on the grounds that petitioner had failed to exhaust his claims in state court. On April 8, 2010, the undersigned filed findings and recommendations recommending that respondent's motion to dismiss be granted. (Id., Doc. No. 19.) On April 8, 2010, those findings and recommendations were adopted by the assigned District Judge and this habeas action was dismissed without prejudice. (Id., Doc. No. 25.) On December 20, 2011, the United States Court of Appeals for the Ninth Circuit denied petitioner a certificate of appealability. (Id., Doc. No. 30.) Petitioner, however, does not specifically challenge the Board's 2008 decision to deny him parole in this federal habeas action.

Prior to filing this federal habeas action now pending before the court, petitioner filed a state habeas petition with the California Supreme Court (Case No. S182204). (Doc. No. 1-4 at 31.) On November 17, 2010, the California Supreme Court summarily denied that habeas petition. (Id.) Respondent has provided this court with a copy of the petition filed with the California Supreme Court, signed by petitioner on April 25, 2010. (Doc. 12-1 at 2-7.) In that petition, however, it appears that petitioner did not challenge a Board decision stemming from a specific parole suitability hearing. Rather, in that state habeas petition petitioner appears to have challenged the decisions of the Los Angeles County Superior Court (Doc. No. 12-5 at 5-8; Doc. No. 12-6 at 8) and the California Court of Appeal for the Second Appellate District (Doc. No. 12-6 at 26-27) denying him habeas relief and the Board's regulations and practices in general. Specifically, in his habeas petition filed with the California Supreme Court petitioner presented the following grounds for relief:

Ground 1: Lower courts' decision deprived petitioner of a fair and adequate habeas review in violation of the 14th Amendment U.S. Constitution Ground 2: The Board's failure to comport with California Penal Code § 3041 violated petitioner's substantive due process/the Board's regulations are vague and unconstitutional and deprive petitioner due process

(Doc. 12-1 at 4-5.)


Petitioner has submitted to this court a form federal habeas petition, a 46-page typewritten petition, and seventy-nine pages of attachments. (Doc. No. 1.) Although petitioner's previous federal habeas petition challenging the Board's decision to deny him parole in 2008 was dismissed as presenting only unexhausted claims, the federal habeas petition now pending before the court does not challenge a specific parole hearing decision. In this regard, petitioner explains:

In August of 2007, after six parole hearing[s] in which Petitioner was again denied modification of his sentence/parole release on the basis of Respondents' claim that he "posed a threat, danger to public safety," This [sic] decision, like all those previously rendered, and all those later held, were predicated upon Respondents' regulations and alleged discretionary authority to so act[.] It was at this time that it became quite apparent to Petitioner that the Board was abusing its discretion and depriving Petitioner of liberty in violation of the United States Constitution through the use of vague and unconstitutional regulations, in part.

(Id. at 25-26.)

Petitioner's lengthy federal habeas petition is certainly not a model pleading and his stated grounds for relief are not clearly and concisely described. Respondent has characterized petitioner's claims as follows:

(1) the Board violated his sentence by not setting his term at his first parole consideration hearing; (2) his equal protection rights have been violated because he was denied credits to reduce his sentence; (3) the Board's regulations are unlawful; (4) all his parole hearings from 1996 until 2010 violated his due process rights because there is no evidence that he is currently dangerous; (5) his sentence violates the Eighth Amendment; (6) he was denied his Sixth Amendment right to effective assistance of counsel at his parole hearings; (7) his Sixth Amendment rights were violated by the Board's consideration of facts not found true by a jury; (8) he was denied his First Amendment right to access to the courts; and (9) the Board is biased. (Doc. No. 12 at 2-3.) In his opposition to respondent's motion to dismiss, petitioner does not dispute that the grounds upon which he seeks federal habeas relief are as summarized by respondent and set forth above. Below, the court will address petitioner's grounds for relief in the context of respondent's motion to dismiss.


Under Rule 4 of the Rules Governing ยง 2254 Cases, "If it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal . . . ." Moreover, Rule 4 "'explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated.'" O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)). Therefore, a motion for summary dismissal pursuant to Rule 4 of the Habeas Rules is an appropriate motion in ...

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