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Branch v. Swarthout

United States District Court, Ninth Circuit

November 5, 2013

GARY SWARTHOUT, et al., Respondents.


DALE A. DROZD, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. This action was transferred to this court from the U.S. District Court for the Southern District of California because petitioner is challenging a denial of parole following his suitability hearing and he is currently confined at California State Prison - Solano.

I. Application to Proceed In Forma Pauperis

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

II. The Pending Petition

In his pending petition for a writ of habeas corpus, petitioner challenges the decision to deny him parole following his May 2, 2011 parole consideration hearing before the Board of Parole Hearings (hereafter "Board"). Upon finding petitioner unsuitable for parole at that time, the Board also delayed his next parole hearing for three years. (ECF No. 1 at 7-8.) Petitioner presents two grounds for federal habeas relief. First, petitioner argues that the Board's failure to set a parole release date violates both his plea agreement in his underlying criminal case as well as applicable California regulations. ( Id. at 7.) Second, petitioner claims that the Commissioner who presided at his suitability hearing erred in failing "to determine that the gravity of the second degree murder was such that consideration of the public safety required at least three additional years of imprisonment as the reason that a release date could not be set." ( Id. at 9.)

III. Applicable Legal Standards

Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for summary dismissal of a habeas petition "[i]f 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, Rules Governing Section 2254 Cases. See also O'Bremski v. Maass , 915 F.2d 418, 420 (9th Cir. 1990); Gutierrez v. Griggs , 695 F.2d 1195, 1198 (9th Cir. 1983). The Advisory Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."

IV. Analysis

This court takes judicial notice of the findings and recommendations filed on October 7, 2011, in petitioner's federal habeas action challenging his underlying 1993 conviction from which his current state prison confinement stems.[1] See Branch v. Swarthout, Civil No. 11cv857 AJB (NLS), 2011 WL 6013023 (S.D. Cal. Oct. 7, 2011), report and recommendation adopted by 2011 WL 6012604 (S.D. Cal. Dec. 1, 20110, vacated in part on other grounds by 2012 WL 256515 (S.D. Cal. Jan. 27, 2012). In that earlier filed federal habeas action, the court noted that petitioner was sentenced to an indeterminate term of 15 years to life in state prison following his plea of guilty to second degree murder pursuant to the terms of his plea agreement. In considering his earlier filed federal habeas action, the court summarized petitioner's argument presented in support of his application for relief as follows:

He now contests his confinement, alleging that his due process rights and right to be free of cruel and unusual punishment have been violated, because the State has not yet released him, in violation of his plea agreement.

2011 WL 6013023 at *1. The court rejected petitioner's claim of entitlement to federal habeas relief in that action, stating as follows:

This court finds that the [state] appellate court's reasoning is not an unreasonable application of federal law. Branch entered a plea agreement where he knew the maximum sentence he could receive was "15 years to life in State prison." Lodgment 1 at 3, ¶ 8a. He received a sentence of 15 years to life. Lodgment 1 at 2. While he is still in prison after more than 15 years, there is no breach of the plea agreement because there was no term in that agreement that limited Branch's incarceration to 15 years. And as the court of appeal noted, Branch has no constitutional right to be ...

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