United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
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.
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
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.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.
filed his present federal petition on July 25,
2017. (ECF No. 1.)
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.
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.
Legal Standards for Motion to Dismiss
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).
Statute of Limitations