The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on August 13, 2012. Petitioner contends the Board of Parole relied on false and inaccurate information in her central file to deny her parole at her suitability hearings in 2007 and 2011. Petitioner also presents that the civil rights action she filed against the Warden of Valley State Prison has resulted in a settlement agreement to expunge and/or redact certain false and inaccurate information from her central file. (Petition, at 8.) Lastly, Petitioner argues the Board issued its five-year and seven-year denials pursuant to California's Proposition 9 ("Marsy's Law") in violation of the ex post facto clause of the United States Constitution. (Petition, at 9.)
Petitioner indicates that she is currently an inmate at Valley State Prison for Women in Chowchilla, serving a sentence of 27 years to life for first degree murder with personal use of firearm. (Petition, at 1.)
Petitioner filed three state habeas corpus petitions challenging the 2011 parole hearing. On December 21, 2011, the San Diego County Superior Court denied the petition for writ of habeas corpus. On February 28, 2012, the California Court of Appeal, Fourth Appellate District denied the petition for writ of habeas corpus. On June 20, 2012, the California Supreme Court denied the petition.
Petitioner submits that she filed a civil rights action against the California Department of Corrections and Rehabilitation (CDCR) which resulted in a settlement agreement to expunge and/or redact certain information from her central file. (Petition, at 24.)
A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution .." 28 U.S.C. § 2241(c)(3). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. However, the petition must "allege facts concerning the applicant's confinement or detention," 28 U.S.C. § 2242, and the Petitioner must make specific factual allegations that would entitle him to habeas corpus relief if they are true. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); United States v. Poopola, 881 F.2d 811, 812 (9th Cir. 1989).
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to make a preliminary review of each petition for writ of habeas corpus. "If it plainly appears from the face of the petition . that the petition is not entitled to relief," the Court must dismiss the petition. Rule 4 of the Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).
I. Board of Parole's Reliance on False and/or Inaccurate Information
The Court finds this claim is not ripe for adjudication. Ripeness is "peculiarly a question
of timing." Buckley v. Valeo, 424 U.S. 1 (1976) (citation omitted). The basic rationale behind the ripeness doctrine "is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements," when those "disagreements" are premised on "contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580-581 (1985). "Our role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate lives cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution." Id. In determining whether a case is ripe, a court considers: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Ohio Foresty Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
Petitioner's latest parole hearing took place in 2011, and the civil rights action settlement agreement did not occur until 2012; thus, it is clear that at the time the Board of Parole Hearings' conducted the 2011 hearing there was no settlement agreement to expunge and/or redact certain information from Petitioner's central file. In this instance, the Court finds Petitioner would not be subject to "hardship" if review is delayed because she can re-file a new habeas corpus petition if and when the Board of Parole Hearings continues to rely on information that was expunged and/or redacted from her central file, which has not yet occurred. Second, judicial intervention at this juncture could interfere with the Board of Parole's future action in response to Deputy California Attorney General, Gretchen Buechsenschuetz's request to advance a new parole suitability within a reasonable time without reliance on the expunged and redacted information and its response thereto. As Petitioner specifically states, she is still in the process of expunging information from her central file and Petitioner has not alleged nor demonstrated that CDCR has declined to conduct a new suitability hearing without reference to the expunged ...