The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On December 12, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody." On January 10, 2013, Respondent filed a motion to dismiss the Petition, asserting: (1) the claims in the Petition are not cognizable on federal habeas review; and (2) even if cognizable, the Petition is untimely. On January 28, 2013, Petitioner filed a "Response to Respondent's Motion to Dismiss."
On March 21, 1991, Petitioner pled guilty to first degree murder and was sentenced to a prison term of thirty-three years to life (Respondent's Lodgment 2). On October 29, 2010, Petitioner appeared before the Board of Parole Hearings ("the Board") for an initial parole suitability hearing (see Respondent's Lodgment 1 (transcript)). The Board denied parole for seven years (id., pp. 123-38 (decision)).
On February 8, 2012, prior to filing the instant Petition, Petitioner filed a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody," in Case No. CV 12-1490-GHK(E) (the "Former Petition"). The Former Petition raises a number of claims, including a challenge to the Board's 2010 parole denial. The Former Petition is still pending.
The present Petition purports to raise "legal questions" concerning terminology sometimes utilized in parole suitability determinations. Specifically, Petitioner seeks legal definitions for the terms: "insight," "remorse," "liberty interest," "nexus," and "miscarriage of justice," as those terms are sometimes used in Board decisions. Petitioner also questions whether indeterminate life prisoners in California have "maximum eligible parole dates," and whether a "court relinquish[es] total authority of a prisoner's sentence once his sentence has been finalized." See Petition, Grounds One and Two. Petitioner asks that this Court answer Petitioner's various legal questions and also remand his case back to the Board with directions to follow and apply California Penal Code section 3041. See Petition, Ground One, p. 5.
Petitioner also appears to raise an additional challenge to the Board's alleged decision to apply Marsy's Law*fn1 to deny Petitioner's parole for seven years. See Petition, Ground Two, pp. 3-5; but see Response, p. 3 (Petitioner asserting that the present Petition raises only "question(s) of law to which Petitioner seeks clarification based on Petitioner's vested liberty interest"). This same challenge appears to be presented, at least in part, in Ground Three of the Former Petition. See Report and Recommendation filed in Case No. CV 12-1490-GHK(E) on October 10, 2012, pp. 4-5 (summarizing claims).
On May 31, 2012, Petitioner filed a habeas petition with the Santa Barbara County Superior Court reportedly presenting the legal questions raised herein,*fn2 which that court denied in a reasoned decision (Respondent's Lodgment 2). On November 20, 2012, the California Supreme Court denied a habeas petition filed by Petitioner, citing In re Miller, 17 Cal.2d 734, 735 (1941). See California Supreme Court Order attached to Petition.
I. Grounds One and Two of the Present Petition Plainly Do Not Entitle Petitioner to Federal Habeas Relief.
A district court may dismiss a habeas petition summarily "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing Section 2254 Cases in the District Courts; Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998). It plainly appears that Petitioner is not entitled to federal habeas relief on Grounds One and Two of the present Petition.
Essentially in a vacuum, Petitioner seeks answers to legal questions concerning parole terminology that may (or may not) be applied to him at some time in the future. The Constitution's "case or controversy" jurisdictional requirement precludes the granting of such an advisory opinion. See U.S. Const., art. III; Preiser v. Newkirk, 422 U.S. 395, 401 (1975) ("a federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them") (citations and internal quotations omitted); Thomas v. Anchorage Equal Rights Com'n, 220 F.3d 1134, 1138 (9th Cir. 2000), cert. denied, 531 U.S. 1143 (2001) ("Our role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution."); see also Clapper ...