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Drakeford v. Lizaraga

United States District Court, E.D. California

February 27, 2018

MICHAEL DRAKEFORD, Petitioner,
v.
J. LIZARAGA, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges the denial of parole by the state Board of Parole Hearings on the grounds that it renders his sentence so long that it constitutes cruel and unusual punishment in violation of the Eighth Amendment. On November 15, 2017, respondent filed a motion to dismiss the petition on the grounds that it is untimely and that petitioner fails to state a claim cognizable under § 2254. Petitioner has not filed a response; he seeks the appointment of counsel. Below, the court finds the petition is timely and that petitioner has stated a cognizable Eighth Amendment claim. The court will recommend denial of the motion to dismiss. In addition, the court will deny petitioner's request for the appointment of counsel.

         BACKGROUND

         On January 21, 1985, petitioner plead guilty to attempted kidnapping for the purposes of robbery and to robbery. He was sentenced to an indeterminate life term with eligibility for parole after seven years. (ECF No. 1 at 1.) In his petition, petitioner states that at his eighth parole hearing on October 7, 2015, the parole board set a base term of twelve years, found him unsuitable for parole, and scheduled his next parole hearing for 2025. (Id. at 5-8.) Petitioner argues that the length of his sentence is disproportionate to his crimes in violation of the Eighth Amendment.

         Petitioner states that he exhausted his claim through all three levels of state review. (Id. at 9.) He lists the most recent state court denial as May 10, 2017. In the motion to dismiss, (ECF No. 9 at 2), respondent describes the following timeline for petitioner's state court proceedings. Petitioner filed his first state petition in the Sacramento Superior Court on September 29, 2016.[1]After that petition was denied, petitioner filed petitions in the state appellate and supreme courts. The California Supreme Court denied the final petition on May 10, 2017.

         Petitioner filed his present federal petition on July 25, 2017.[2] (ECF No. 1.)

         MOTION TO DISMISS

         Respondent moves to dismiss the petition on two grounds. First, respondent argues that the petition is untimely because petitioner filed it outside the one-year limitations period. Second, respondent argues petitioner fails to state a cognizable claim. Petitioner did not file an opposition to the motion. He explains that he no longer has the assistance of the inmate who helped him prepare the petition and that, due to his mental capacity he is unable to respond to the motion. Petitioner seeks the appointment of counsel.

         While petitioner has not filed an opposition to respondent's motion, and this court could, therefore, find in respondent's favor solely on that basis, see E.D. Cal. R. 230(1) (lack of opposition to a motion can be deemed a waiver of any opposition), the court finds that the interests of justice are best served by considering respondent's motion. Based on the court's review of that motion and of petitioner's petition, the court recommends the motion be denied.

         I. Legal Standards for Motion to Dismiss

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court....” Rule 4, Rules Governing Section 2254 Cases; see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated”); Vargas v. Adler, 2010 WL 703211, at *2 (E.D. Cal. 2010) (granting motion to dismiss a habeas claim for failure to state a cognizable federal claim). Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases indicate that the court may dismiss a petition for writ of habeas corpus: 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, e.g., Miles v. Schwarzenegger, 2008 WL 3244143, at *1 (E.D. Cal. Aug.7, 2008) (dismissing habeas petition pursuant to respondent's motion to dismiss for failure to state a claim). However, a petition for writ of 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. 1971).

         II. Statute of Limitations

         A. ...


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