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 DISREGARDING PETITIONER'S MOTION TO REQUIRE COPIES (Doc. 14) AND MOTION TO LIBERALLY CONSTRUE THE PETITION (Docs. 14 & 15)
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On April 4, 2012, Petitioner filed the instant petition for writ of habeas corpus. (Doc. 1). Because the claims raised in the original petition contained insufficient factual allegations, the Court, on July 31, 2012, ordered Petitioner to file an amended petition. (Doc. 11). On September 26, 2012, Petitioner filed a first amended petition (Doc. 16), along with an motion for an order for state prison officials to copy Petitioner's first amended petition and supporting exhibits (Doc. 14), and a motion to liberally construe Petitioner's amended petition. (Doc. 15). 2
I. Preliminary Screening of the Petition.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 4 if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 5 not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The 6 Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached 7 exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. 8 Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th cir. 1990). 9
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 April 4, 2012, and thus, it is subject to the provisions of the AEDPA.
In the first amended petition, Petitioner alleges that he is an inmate of the California Department of Corrections and Rehabilitation who is serving an indeterminate sentence of seven years-to-life as a result of a 1991 conviction in the Sacramento County Superior Court for aiding and abetting attempted murder. (Doc. 16, p. 1). Petitioner does not challenge either his conviction or 2 sentence; rather, Petitioner challenges April 14, 2010 decision of the Board of Parole Hearings 3 ("BPH") finding him unsuitable for parole for the fourth time. 4
Petitioner raises the following grounds for relief: (1) the state courts agreed that Petitioner's 5 constitutional rights were violated in the BPH hearing process but refused to correct the error; (2) the 6 state courts violated Petitioner's state and federal due process and equal protection rights by affirming 7 the BPH's arbitrary decision; (3) the state courts deprived Petitioner of his constitutional due process 8 and equal protection rights in affirming the BPH decision regarding the applicability of Proposition 9 9 ("Marsy's Law"); and (4) the state courts deprived Petitioner of his state and federal due process and equal protection rights by affirming a state agency decision that effectively converted his sentence in to one of life without the possibility of parole. (Doc. 1, pp. 5-7).
A. Substantive Due Process Claims And California's "Some Evidence" Standard
As discussed more fully below, the claims in the first amended petition sound exclusively in substantive federal due process and therefore are not cognizable in these proceedings.
The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution." 28 U.S.C. § 2254(a) states that the federal courts shall entertain a petition for writ of habeas corpus only on the ground that the petitioner "is in custody in violation of the Constitution or 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, 120 S.Ct. 1495 (2000); Wilson v. Corcoran, 562 U.S. ___, 131 S.Ct. 13, 16 (2010); see also, Rule 1 to the Rules Governing Section 2254 Cases in the United States District Court. The Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody . . ." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of his claim in state court 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2 2254(d)(1), (2).
Because California's statutory parole scheme guarantees that prisoners will not be denied 4 parole absent some evidence of present dangerousness, the Ninth Circuit Court of Appeals has held 5 that California law creates a liberty interest in parole that may be enforced under the Due Process Clause. Hayward v. Marshall, 602 F.3d 546, 561-563 (9th Cir.2010); Pearson v. Muntz, 606 F.3d 606, 7 608-609 (9th Cir. 2010); Cooke v. Solis, 606 F.3d 1206, 1213 (2010), rev'd, Swarthout v. Cooke, 562 8 U.S.___, 131 S.Ct. 859, 2011 WL 197627 (Jan. 24, 2011). The Ninth Circuit instructed reviewing 9 federal district courts to determine whether California's application of California's "some evidence" rule was unreasonable or was based on an unreasonable determination of the facts in light of the evidence. Hayward v. Marshall. 603 F.3d at 563; Pearson v. Muntz, 606 F.3d at 608.
On January 24, 2011, the Supreme Court issued a per curiam opinion in Swarthout v. Cooke, 562 U.S.___, 131 S.Ct. 859, 2011 WL 197627 (No. 10-133, Jan. 24, 2011). In that decision, the United States Supreme Court characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment's Due Process Clause, ...