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James Vermillion v. Warden James D. Hartley

October 2, 2012

JAMES VERMILLION, PETITIONER,
v.
WARDEN JAMES D. HARTLEY,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO ) DISMISS THE PETITION (DOCS. 9,) 1), DISMISS THE PETITION, AND ) DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is Respondent's motion to dismiss the petition, which was filed on June 14, 2012. Petitioner filed opposition on July 5, 2012. No reply was filed.

I. Proceeding by a Motion to Dismiss Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) 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...."

The Ninth Circuit permits respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). Thus, a respondent may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n.12.

Here, upon being directed to respond to the petition by way of answer or motion, Respondent filed the motion to dismiss. The material facts pertinent to the motion are contained in the pleadings and in copies of the official records of state parole and judicial proceedings which have been provided by the parties, and as to which there is no factual dispute. Because Respondent's motion to dismiss is similar in procedural standing to motions to dismiss on procedural grounds, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.

II. Background

A. The Petition

Petitioner alleges he is serving a sentence of fifteen years to life imposed in the Kern County Superior Court for a conviction of second degree murder on or about August 21, 1995. (Pet., doc. 1, 1.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) denying Petitioner parole following a hearing on April 27, 2010. Petitioner alleges that the BPH's decision to deny parole was unconstitutionally predetermined and arbitrary in violation of his rights under the Due Process Clause of the Fourteenth Amendment. Petitioner contends that his due process rights were violated by the absence of an impartial decision maker, the BPH's failure to articulate a specific reason for denying parole, and the BPH's reliance on a subjective criterion of a lack of insight, which was contradicted by psychological evaluations. (Id. at 4, 8, 12-13.) Petitioner contends that because he was denied an impartial tribunal, the constitutional error was prejudicial per se, and the decision must thus be reversed. (Id. at 14.) Petitioner argues that the state court decision upholding the BPH's denial of parole was contrary to, and an unreasonable application of, clearly established federal law and an unreasonable determination of the facts in light of the evidence presented within the meaning of 28 U.S.C. § 2254(d).

B. The State Proceedings

Petitioner appeared with counsel at the hearing on April 27, 2010, before a BPH panel consisting of Presiding Commissioner Mike Prizmich and Deputy Commissioner Noreen Blonien. (RT 10/27/12, Mot., Ex. 1, Ex. A at 1-3.) Neither Petitioner nor his counsel objected to the panel when asked if they had any objections. (Id. at 11.) Petitioner's counsel submitted documentation supporting Petitioner's release. (Id. at 11, 16.) Petitioner's counsel confirmed that the documentation he had was the same as that before the panel with the exception of a confidential folder, which was not used in the determination. (Id. at 13-14.)

In perpetrating the commitment offenses, Petitioner, who had five or six previous drunk driving convictions, drove while intoxicated with a blood alcohol level of .22 and proceeded in the wrong direction on a highway. He collided with another car; killed the twenty-two-year-old passenger, and rendered the nineteen-year-old driver so severely disabled that he is confined to a wheelchair with serious brain injuries. Petitioner had no memory of the offense due to an alcoholic blackout. (Id. at 3-4, 16-31.) Petitioner discussed with the panel the facts of the commitment offense and various factors relating to parole suitability, such as his criminal history, alcoholism, social history, behavior in prison, progress in understanding and dealing with substance abuse, and parole plans. (Id. at 15-91.) Petitioner's counsel and Petitioner both made a statement in favor of parole. (Id. at 91-96, 97-100.)

Petitioner was present when the panel explained the following reasons for denying parole: Petitioner currently posed a risk of danger because he caused death or serious harm to multiple victims under circumstances of extreme recklessness; Petitioner had numerous previous convictions of driving under the influence that were committed when he was outside the controlled environment of a penal institution; Petitioner's demonstrated level of insight into his crime and level of remorse were unclear or inadequate, and he had not reached an appropriate level of humility in regard to the twelve-step program. (Id. at 101-08.)

The Kern County Superior Court denied Petitioner's petition for a writ of habeas corpus, noting that current danger was premised upon the short and sporadic period Petitioner received counseling for alcoholism, Petitioner's having killed or seriously harmed multiple victims, and Petitioner's need to learn how to refrain from consuming alcohol outside a controlled environment; the crime was inextricably connected with alcohol consumption and the need to refrain from such behavior upon release. (Mot., Ex. 2.) The Court of Appeal of the State of California, Fifth Appellate District denied Petitioner's habeas petition because some evidence supported the finding of unsuitability. (Id., Ex. 4.) The California Supreme Court summarily denied Petitioner's habeas petition. (Id., Ex. 6.)

III. Legal Standards

A. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. 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 v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas 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, 1042-43 (9th Cir. 2001).

B. Relief pursuant to 28 U.S.C. § 2254 Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

28 U.S.C. § 2254 provides in pertinent part:

(d) 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 ...


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