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Ed Ontiveros v. R.J. Subia

October 1, 2012

ED ONTIVEROS, PETITIONER,
v.
R.J. SUBIA, RESPONDENT.



ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner and filed a pro se petition for writ of habeas corpus in July 2007. Petitioner does not attack his underlying judgment of conviction in his federal habeas corpus petition. Instead, petitioner challenges the July 28, 2004 decision by the California Board of Parole Hearings (hereinafter "Board") to deny him parole. Petitioner raises the following four claims for habeas relief: (1) the Board violated his due process rights under the Fourteenth Amendment by failing to ensure that he underwent a new psychological evaluation prior to his parole hearing ("Claim I"); (2) the Board violated his right to due process and his "civil liberty" interest in parole under the Fourteenth Amendment because the Board members were arbitrary, unfair, biased, and unskilled in weighing the evidence before them ("Claim II"); (3) the Board violated his right to due process under the Fourteenth Amendment by failing to properly apply the standard requiring some evidence that he posed a current danger to society if released from prison standard to deny parole in his case ("Claim III"); and (4) the Board exceeded its authority and violated its own regulations and state law by denying him parole because the Board is normally required to set parole dates at initial parole hearings ("Claim IV").

I. BACKGROUND

On July 28, 2004, the Board conducted a parole hearing and found petitioner unsuitable for release on parole. Petitioner filed several petitions seeking habeas relief in state court challenging the Board's 2004 decision. Applying the mailbox rule, see Houston v. Lack, 487 U.S. 266, 276 (1988), petitioner filed a petition for writ of habeas corpus in the Amador County Superior Court on October 21, 2005. That court transferred the case to the Alameda County Superior Court which denied the state habeas petition on the ground that it failed to state a prima facie case for relief. On or about January 2, 2006, petitioner filed an amended petition in the Alameda County Superior Court. On January 6, 2006, that court denied the petition, again on the ground that it failed to state a prima facie case for relief. On January 16, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District. On February 9, 2006, the California Court of Appeal denied the petition, explaining that petitioner was required to provide the court with a copy of the transcript of the parole hearing at which the challenged decision was issued. Petitioner subsequently submitted a transcript of the parole hearing to the state appellate court. On July 31, 2006, the California Court of Appeal summarily denied habeas relief. On July 16, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which summarily denied the petition on February 7, 2007.

Petitioner commenced this federal habeas proceeding by filing his federal petition on July 7, 2007. On April 2, 2008, respondent filed a motion to dismiss. Therein, respondent raised two grounds in the motion; specifically: (1) the petition is untimely; and (2) petitioner failed to exhaust his state court remedies. On June 13, 2008, the undersigned recommended that respondent's motion to dismiss due to the untimeliness of the petition be granted, rejecting petitioner's argument that he was entitled to both statutory and equitable tolling of the statute of limitations. (Doc. No. 14.) The undersigned declined to address respondent's alternative argument that the habeas petition should be dismissed due to a lack of exhaustion of state court remedies in light of the finding that the federal habeas petition was untimely filed. Those June 13, 2008 findings and recommendations were adopted by the assigned District Judge on October 2, 2008. On October 22, 2008, a certificate of appealability was issued. On March 12, 2009, counsel was appointed for petitioner.

On February 18, 2010, the Ninth Circuit Court of Appeals affirmed the finding that petitioner was not entitled to statutory tolling but reversed and remanded the case for factual development with regard to petitioner's claim that he was entitled to equitable tolling of the statute of limitations. (Doc. No. 27.) Specifically, the Ninth Circuit indicated that on remand this court should determine whether a referred to learning disability or prison lock-downs prevented petitioner from timely-filing his federal petition thereby entitling him to equitable tolling of the statute of limitations. The mandate was issued on March 12, 2010.

On March 18, 2010, respondent requested judicial notice of the pending motion to dismiss and that the court had not yet ruled on the motion to the extent that it was based upon the argument that petitioner had also failed to exhaust his claims by properly presenting them to the state courts. Subsequently, this court established a briefing schedule with respect to the issue of exhaustion.

On February 8, 2011, the undersigned recommended that respondent's motion to dismiss for lack of exhaustion be denied. In so doing, the court determined that petitioner had raised all four of his claims in his state habeas petition presented to the California Supreme Court which was summarily denied. Those February 8, 2011 findings and recommendations were adopted in full by the assigned District Judge on March 28, 2011.

II. RECOMMENDED SUMMARY DISMISSAL OF CLAIMS I, III & IV

Under Rule 4 of the Rules Governing § 2254 Cases, the court must conduct a review of § 2254 habeas petitions. "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 . . . ." Rule 4, Rules Governing § 2254 Cases. 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)).

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...


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