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 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On July 12, 2012, Petitioner filed the instant petition for writ of habeas corpus. (Doc. 1). Petitioner challenges the California court decisions upholding a January 4, 2011, decision of the California Board of Parole Hearings ("BPH"). Petitioner's two claims, which overlap in major respects, essentially contend that 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, thus depriving Petitioner 2 of his due process rights under the federal constitution. 3
I. Preliminary Screening of the Petition.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 5 if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 6 not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The 7
Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached 8 exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. 9 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 July 12, 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 27 years-to-life imposed in the San Bernardino County Superior Court after Petitioner's 1986 conviction for first degree murder with a firearm. (Doc. 1, p. 1).
Petitioner does not challenge either his conviction or sentence; rather, Petitioner challenges the 2 January 4, 2011 decision of the BPH finding him unsuitable for parole. Petitioner raises two claims 3 for relief: (1) the BPH failed to follow the guidelines set forth in California Penal Code § 3041, 4 resulting in a decision that was arbitrary and oppressive and violated Petitioner's Due Process rights; 5 and (2) the BPH's actions resulted in a ...