United States District Court, N.D. California
Decided April 2, 2015.
Louie Pando, Petitioner, Pro se, Soledad, CA.
ORDER REOPENING ACTION; DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND DENYING CERTIFICATE OF APPEALBILITY
EDWARD J. DAVILA, United States District Judge.
Petitioner, a state prisoner incarcerated at Salinas Valley State Prison, has filed a pro se petition for a writ of habeas corpus. On April 22, 2014, the Court dismissed the instant action for failure to pay the filing fee. (Docket No. 3.) On December 4, 2014, the Court granted Petitioner's motion for reconsideration and directed Petitioner to either file an in forma pauperis application or pay the filing fee. (Docket No. 7.) According to the docket, the filing fee was filed received on January 6, 2015. The Clerk is therefore ordered to vacate the April 22, 2014 Order of Dismissal and Judgment (Docket Nos. 3 and 4), and reopen this case.
However, after reviewing the petition, for the reasons stated below, the court DENIES the Petition for a Writ of Habeas Corpus.
This court may entertain a petition for a writ of habeas corpus " in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
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."
According to the petition, Petitioner was found guilty of first degree murder and sentenced to a term of 25 years to life. (Docket No. 1-1 at 2.) On October 31, 2011, Petitioner appeared before the Board of Parole Hearings (" BPH" ) for his seventh parole consideration hearing. The Board found him suitable for release at that time. (Docket No. 1-1 at 2-11.) On March 29, 2012, Governor Brown exercised his authority and reversed the Board's decision and found Petitioner not suitable for parole. (Docket No. 1-2 at 16-18.)
Petitioner apparently filed an unsuccessful habeas petition in the California Supreme Court before filing this action. (Docket No. 1 at 2 and 4.)
Petitioner filed the instant federal habeas petition on March 7, 2014. Petitioner claims that the governor's decision is not supported by " some evidence" as required under California law in violation of ...