The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: RESPONDENT‟S MOTION TO DISMISS (Doc. 15) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS 9
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
This habeas corpus petition was filed on March 30, 2012.. On June 14, 2012, Respondent filed the instant motion to dismiss, contending, inter alia, that the Court lacks habeas jurisdiction over Petitioner‟s claims. (Doc. 15). On August 13, 2012, Petitioner filed his opposition to the motion to dismiss. (Doc. 18).
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition for lack of jurisdiction and failure to state a claim upon which habeas relief can 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 face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court 2
. . . ." Rule 4 of the Rules Governing Section 2254 Cases. 3
The Ninth Circuit has allowed Respondent‟s to file a Motion to Dismiss in lieu of an Answer if 4 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state‟s 5 procedural rules. See, e.g., O‟Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to 6 evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 7 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state 8 procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, 9 a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's Motion to Dismiss is based on the contention that the Court lacks jurisdiction over the habeas petition and that Petitioner has failed to state a claim upon which habeas relief can be granted. Because Respondent's Motion to Dismiss is similar in procedural standing to a Motion to Dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal Answer, the Court will review Respondent‟s Motion to Dismiss pursuant to its authority under Rule 4.
Petitioner is a state prisoner serving an indeterminate life sentence for a 1974 murder conviction in the Los Angeles County Superior Court. (Doc. 1, p. 1). Petitioner‟s Minimum Eligible Parole Date ("MEPD") was May 20, 1981. (Doc. 15, Ex. B). Subsequently, Petitioner has unsuccessfully sought parole eligibility at hearings before the Board of Parole Hearings ("BPH") on at least fifteen occasions. (Doc. 15, Ex. B).
Petitioner challenges the results of an April 12, 2010, prison disciplinary hearing after which Petitioner was found to have committed the offense of resisting a peace officer in the performance of his duties, for which he received a punishment of 90 days‟ forfeiture of credits. (Doc. 15, Ex. A). The incident giving rise to this determination occurred on March 9, 2010, when Petitioner objected to being returned to house with his cellmate, whom Petitioner contended was acting erratically. Although the accounts of Petitioner and the correctional officers differ in many respects, all agree that when the correctional officers attempted to return Petitioner to his cell, he placed his foot against the 2 wall to prevent being placed back in his cell, that an altercation with correctional officers resulted, and 3 that Petitioner was ultimately placed in administrative segregation and charged with a rules violation. 4
In his petition, Petitioner raises a single ground for relief; however, as Respondent correctly 5 notes, the claim subsumes three quite separate legal theories: (1) Petitioner was subjected to cruel and 6 unusual punishment by correctional officers during the disciplinary incident; (2) Petitioner‟s federal 7 due process rights were denied during the incident; and (3) Respondent failed to follow procedural 8 requirements set forth in the state regulations. (Doc. 1, p. 15 et seq.). 9
Respondent‟s motion to dismiss contends that the petition should be dismissed because the Court lacks habeas jurisdiction over Petitioner‟s due process claim since, as a "lifer" past his MEPD, his loss of credits does not impact the length of his sentence, that Petitioner‟s eighth amendment claim is not cognizable in habeas proceedings, and that any claim based solely on state law violations is likewise not cognizable in ...