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Eugenio Pereida v. James D. Hartley

November 7, 2012

EUGENIO PEREIDA, PETITIONER,
v.
JAMES D. HARTLEY, RESPONDENT.



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

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

On May 14, 2010, Petitioner filed the instant petition for writ of habeas corpus. (Doc. 1). On June 11, 2010, the Court ordered Respondent to file a response to the petition. (Doc. 7). On August 10, 2010, Respondent filed a motion to dismiss the petition for lack of exhaustion. (Doc. 11). On November 4, 2010, the Magistrate Judge issued Findings and Recommendations to deny the motion to dismiss. (Doc. 15). Those Findings and Recommendations were adopted by the District Judge on December 15, 2010. (Doc. 18). On April 11, 2012, the Court issued an Order to Show Cause why 2 the petition should not be summarily dismissed pursuant to the recently decided United States Supreme Court case, Swarthout v. Cooke, 562 U.S.___, 131 S.Ct. 859, 2011 WL 197627 (Jan. 24, 2011). (Doc. 20). That Order to Show Cause gave Petitioner thirty days within which to file a response or else face having the petition summarily dismissed. To date, Petitioner has not filed a 6 response. Accordingly, the Court will recommend that the petition be dismissed for lack of 7 jurisdiction. 8

Here, Petitioner alleges that he is an inmate of the California Department of Corrections and Rehabilitation, who is serving an indeterminate sentence of fifteen years-to-life plus a consecutive determinate sentence of five years, imposed in the Los Angeles County Superior Court after Petitioner's 1992 conviction for second degree murder. (Doc. 1, Ex. A). Petitioner, however, does not challenge either his conviction or sentence; rather, Petitioner challenges the California court decisions upholding a March 12, 2008 decision of the California Board of Parole Hearings ("BPH") finding Petitioner unsuitable for parole. Petitioner raises the following claims: (1) Petitioner was denied his federal due process rights by the BPH in denying parole suitability because no rational nexus existed between the BPH's finding that Petitioner was an "unreasonable risk of danger" and the factors relief upon by the BPH; and (2) the BPH's decision denying parole suitability was not objectively reasonable. (Doc. 1, p. 10).

I. Preliminary Screening of the Petition.

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 . . . ." Rule 4 of the Rules Governing Section 2254 Cases. 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, 915 F.2d at 420. Allegations in a 3 petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. 4

Hendricks, 908 F.2d at 491. 5

Further, the Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition 6 for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion 7 to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas 8 Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 9

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 ...


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