United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION
WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE
CLAIM (Doc. 1) ORDER DIRECTING CLERK OF COURT TO ASSIGN
DISTRICT COURT JUDGE TO THE PRESENT MATTER
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Procedural Grounds for Summary Dismissal
Rule 4 of the Rules Governing Section 2254 Cases provides in
If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.
Advisory Committee Notes to Rule 8 indicate that the court
may dismiss a petition for writ of habeas corpus, either on
its own motion under Rule 4, pursuant to the respondent's
motion to dismiss, or after an answer to the petition has
been filed. See Herbst v. Cook, 260 F.3d 1039 (9th
Cir. 2001). Allegations in a petition that are vague,
conclusory, or palpably incredible are subject to summary
dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491
(9th Cir. 1990). A petition for habeas corpus 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.
9, 2016, Petitioner filed the instant petition for writ of
habeas corpus. (Pet., ECF No. 1.) Petitioner challenges the
October 30, 2014 decision of the Board of Parole Hearings
("Board") finding him unsuitable for parole.
Petitioner claims the Board and the California courts
unreasonably determined that there was some evidence he posed
a current risk of danger to the public if released. It
further appears that Petitioner is claiming that the actions
of the Board were in violation of state law, subjecting him
to a grossly disproportionate sentence. Finally, Petitioner
contends that the application of the relevant California
provisions governing parole unlawfully extended his sentence
in violation of ex post facto principles.
Federal Review of State Parole Decisions
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, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997); Furman v. Wood,
190 F.3d 1002, 1004 (9th Cir. 1999).
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 n.7, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000); Wilson v. Corcoran,
131 S.Ct. 13, 16, 178 L.Ed.2d 276 (2010).
Supreme Court has characterized as reasonable the decision of
the Court of Appeals for the Ninth Circuit that California
law creates a liberty interest in parole protected by the
Fourteenth Amendment Due Process Clause, which in turn
requires fair procedures with respect to the liberty
interest. Swarthout v. Cooke, 131 S.Ct. 859, 861-
62, 178 L.Ed.2d 732 (2011).
the procedures required for a parole determination are the
minimal requirements set forth in Greenholtz v. Inmates
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12,
99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Swarthout, 131
S.Ct. at 862. In Swarthout, the Court rejected
inmates' claims that they were denied a liberty interest
because there was an absence of "some evidence" to
support the decision to deny parole. The Court stated:
There is no right under the Federal Constitution to be
conditionally released before the expiration of a valid
sentence, and the States are under no duty to offer parole to
their prisoners. (Citation omitted.) When, however, a State
creates a liberty interest, the Due Process Clause requires
fair procedures for its vindication-and federal courts will
review the application of those constitutionally required
procedures. In the context of parole, we have held that the
procedures required are minimal. In Greenholtz, we
found that a prisoner subject to a parole statute similar to
California's received ...