The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1)
FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE
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 through 304. Pending before the Court is the petition, which was filed on February 4, 2013.
I. 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; 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.
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). A petition for habeas corpus, however, should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Here, Petitioner alleges that he is an inmate of the Avenal State Prison serving a sentence of fifteen years to life pursuant to his conviction of second degree murder sustained in 1984 in the Superior Court of the State of California, County of Los Angeles. (Pet., doc. 1, 1.) Petitioner challenges the decision of a panel of California's Board of Parole Hearings (BPH) made following a December 29, 2010, hearing, in which the BPH determined that Petitioner was unsuitable for parole. (Pet. 4-6, 9.)
Petitioner raises the following claims in the petition: 1)
the BPH arbitrarily and oppressively failed to adhere to Cal. Pen. Code § 3041 in denying parole, thereby violating Petitioner's right to due process of law guaranteed by the Fourteenth Amendment; 2) the BPH arbitrarily denied Petitioner his fundamental liberty interest, thereby violating Petitioner's interests as protected by the Fifth and Fourteenth Amendments; 3) the BPH's denial of parole violated Petitioner's right to due process of law because it was arbitrary and "failed the bases of the codified criteria where parole is the rule, rather than the exception" (id. at 5); 4) the BPH's denial of parole violated due process because it was arbitrary as it failed to show a nexus between Petitioner's parole risk and his continued confinement; and 5) the BPH arbitrarily abolished Petitioner's liberty interest because it failed to follow Cal. Pen. Code § 3041, and its decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, in violation of federal law and Petitioner's right to due process of law. (Id. at 4-6.)
Petitioner appeared before the BPH on December 29, 2010, at Avenal State Prison. (Pet. at 12.) Petitioner was represented by counsel; he gave sworn testimony to the commissioners and made a closing statement concerning his suitability for parole. (Id. at 13-16, 67-68.) Petitioner was given the opportunity to correct or clarify the record. (Id. at 17.)
The murder occurred when, during an armed robbery committed by a co-defendant and Petitioner when Petitioner was eighteen years old, the co-defendant fatally stabbed the victim. (Id. at 18-19.) Petitioner's criminal history included juvenile possession of nunchucks, burglary, battery, attempted use of a knife against Petitioner's brother, and threats to kill his stepmother, all of which Petitioner attributed to his drug use (marijuana, speed, PCP, alcohol, and heroin). (Id. at 33-37, 42.) Petitioner had been sporadically employed; his longest period of employment was three months. (Id. at 42.) Petitioner had completed numerous courses in prison and had committed disciplinary offenses between March 1985 and November 2003 that included mutual combat, fighting, physical altercation, and possession of a stabbing weapon. (Id. at 48-49.) Petitioner was diagnosed with poly-substance dependence and antisocial personality disorder. He had improved insight into the variables that influenced his abuse of controlled substances and his willingness to engage in criminal and violent behavior, but he demonstrated limited levels of insight into his behavior, decision making, substance abuse, and behavioral control skills. He needed to develop a comprehensive relapse prevention plan regarding substance abuse. (Id. at 50.) He was within the low to moderate range for violent recidivism. (Id. at 51-53.)
The panel informed Petitioner that it found him unsuitable for parole because he posed an unreasonable risk of danger if released, based on Petitioner's exceptionally callous commitment offense, institutional misconduct, disturbing history of violence as a juvenile, multiple failures in the juvenile system, limited insight, and lack of a comprehensive relapse prevention plan. (Id. at 70-78.)
Although Petitioner does not detail his efforts to exhaust state remedies, he alleges that he appealed the decision and attaches a copy of an order from the California Supreme Court denying a petition for writ of habeas corpus. (Id. at 96.)
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 in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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 ...