United States District Court, E.D. California
ORDER and FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an 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 court will grant petitioner's application to proceed in forma pauperis. See 28 U.S.C. § 1915(a).
For the reasons discussed herein, the undersigned recommends dismissal of the instant petition without prejudice to petitioner pursuing his Ex Post Facto claims as a member of the plaintiff class in Gilman v. Fisher, Case No. 2:05-0830 LKK CKD P (E.D. Cal.).
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, 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 Committee 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."
Petitioner is serving a state prison term of twenty-five years to life, with the possibility of parole, plus five years, based on convictions rendered April 3, 1990. (Pet. at 1.) Petitioner challenges the April 25, 2012 decision of the California Board of Parole Hearings (Board) denying him parole. Petitioner makes the following claims:
(1) "The Board violated petitioner's due process right by finding him unsuitable for parole where there is no nexus between his insight as to any character defects that you [he] may have as the 12 Steps talks about' and the conclusion that he presents an unreasonable risk to public safety if released."
(2) "The court should grant review to address the Board's arbitrary five-year deferral period for petitioner's next parole hearing."
(3) Petitioner's due process rights were violated when the [Board] held his parole hearing under Proposition 9, which also violated the Ex Post Facto principles' of the state and federal constitutions."
(Pet. at 4-5; Pet'r's Mem. of P. & A.)
I. Due ...