Opinion
CV F 05-00816 AWI DLB HC.
September 12, 2006
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Ann C. McClintock, Esq.
BACKGROUND
Petitioner is in custody in the California Department of Corrections and Rehabilitation (CDCR). In November 1981, Petitioner got into an argument, retrieved a weapon, and started shooting, killing two men and wounding a woman. (Pet., Exhibit D, Parole Consideration Hearing Transcript, at 8-12.) Petitioner fled the scene and absconded to Texas, where he committed further criminal offenses before being extradited to California for prosecution. (Id.) On May 3, 1998, Petitioner was convicted of second degree murder and manslaughter, for which he is serving a sentence of fifteen years to life. (Pet. at 2 Exhibit B.)
On June 8, 2005, the California Supreme Court denied Petitioner's petition for writ of habeas corpus challenging the Parole Board's decision. (Pet, Exhibit A.)
On June 22, 2005, Petitioner filed the instant federal petition for writ of habeas corpus which challenges the California Parole Board's decision to deny Petitioner parole at a parole consideration hearing held on January 22, 2003.
On September 29, 2005, Respondent filed a motion to dismiss the instant petition for lack of subject matter jurisdiction. (Court Doc. 8.) Petitioner filed an opposition on October 19, 2005. (Court Doc. 9.) Then on December 21, 2005, this Court appointed the Office of the Federal Defender to represent Petitioner, and granted Petitioner the opportunity to file a supplemental opposition through counsel. (Court Doc. 11.) On February 3, 2006, Petitioner filed a supplemental opposition to Respondent's motion to dismiss. (Court Doc. 13.)
DISCUSSION
A. Procedural Grounds 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 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 n. 12.
In this case, Respondent's motion to dismiss is based on a lack of subject matter jurisdiction. Because Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal answer, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
B. Subject Matter Jurisdiction
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.
Petitioner is in custody of the California Department of Corrections pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for his habeas petition because he meets the threshold requirement of being in custody pursuant to a state court judgment. White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004).
The Fourteenth Amendment provides that "[no] State [shall] deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1. In certain cases, a state law may create a liberty interest protected by the Constitution. In examining questions of procedural due process, federal courts employ a two-step inquiry: 1) whether there exists a liberty or property interest which has been interfered with by the State, and 2) whether the procedures attendant upon that deprivation were constitutionally sufficient. Sass v. California Board of Prison Terms, ___ F.3d ___, 2006 WL 2506393 *3 (9th Cir. Aug. 31, 2006) (citing Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).)
In the instant petition for writ of habeas corpus, Petitioner contends that his due process rights under the Fourteenth Amendment were violated when the Board found that he was unsuitable for parole at the January 2003 hearing. Respondent seeks dismissal of the instant petition on the ground that there is no liberty interest in parole, and therefore, no cognizable federal due process claim. More specifically, Respondent contends that California's parole statute, as set forth in California Penal Code section 3041, does not give rise to a federal liberty interest.
The relevant California statutory language is contained in Cal. Penal Code § 3041, which states, in relevant part:
(a) One year prior to the inmate's minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5.
(b) The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting. . . .
Cal. Penal Code §§ 3041(a), 3041(b) (West 2000) (Emphasis added).
The United States Supreme Court has expressly denied entitlement to a protected liberty interest in parole. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) ("There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). "Nevertheless, early release statutes can create a `liberty interest protected by due process guarantees.'" Bermudez v. Duenas, 936 F.2d 1064, 1067 (9th Cir. 1991) (per curiam), quoting Greenholtz, 442 U.S. at 12; Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). Moreover, "[a] state may create a constitutionally protected liberty interest by establishing regulatory measures that impose substantive limitations on the exercise of official discretion." Bermudez, 936 F.2d at 1067,citing Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 844 (9th Cir. 1985). However, no protected entitlement to release exists unless a state scheme includes a formula which mandates release after the occurrence of specified events. Baumann, 754 F.2d at 844 (stating that the unique "shall/unless" formula was decisive in Greenholtz). If there exists mandatory language in a parole statute, then Petitioner has a protected liberty interest in parole release. Greenholtz, 442 U.S. at 11-12. If, however, the state merely holds out the possibility of parole, then such a hope is not protected by due process. Id.; Baumann, 754 F.2d at 844. Therefore, the Court must look to the California parole statutes to determine whether the unique structure and language of those statutes creates an entitlement to parole release or a presumption of expectation of parole release.
In Sass v. California Board of Prison Terms, the Ninth Circuit Court of Appeals, ruled that the District Court in Sass v. California Board of Prison Terms, 376 F.Supp.2d 976 (E.D. Cal. 2005) erred by finding that the California Supreme Court's decision in In re Dannenberg, 34 Cal.4th 1061 (2005), held that section 3041(b) does not use mandatory language. Sass v. California Board of Prison Terms, 2006 WL 2506393, at *3-4.
Initially, the Court noted that in McQuillion v. Duncan, 306 F.3d 895, 902 (2002), it was held that "[u]nder the `clearly established' framework of Greenholtz and Allen, . . . California's parole scheme gives rise to a cognizable liberty interest in release on parole." Sass, 2006 WL 2506393 at *3 (citing McQuillion v. Duncan, 306 F.3d at 902). Furthermore, this "liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate." Id. (citingBiggs v. Terhune, 334 F.3d 910, 915 (2003), footnote omitted).
The Ninth Circuit found that "Dannenberg addressed the narrow question whether the Board must engage in a comparative proportionality analysis in setting parole dates pursuant to section 3041(a) before determining whether an inmate is suitable for parole pursuant to section 3041(b), . . . holding `[n]othing in the statute states or suggests that the Board must evaluate the case under standards of term uniformity before exercising its authority to deny a parole date on the grounds the particular offender's criminality presents a continuing public danger.'"Sass, 2006 WL 2506393 *3 (citing Dannenberg, at 1070, emphasis in original, citations omitted.) The Court stated that theDannenberg Court never held California law did not provide a liberty interest in parole. Rather, the California Supreme Court proceeded to the second step of the analysis in determining whether the procedures utilized were constitutionally sufficient.Id. (citing Dannenberg, at 1070.) Thus, the Ninth Circuit reasoned that the California Supreme Court would not have proceeded to this analysis if there was, in fact, no liberty interest. Id. (citing Ky. Dep't of Corr., 490 U.S. at 460.)
Based on the reasoning and holding in Ninth Circuit Court of Appeal's opinion in Sass, this Court finds that Petitioner continues to have a protected liberty interest in parole, and the instant petition is therefore not subject to dismissal for lack of subject matter jurisdiction.
Accordingly, it is HEREBY ORDERED that:
1. Respondent's motion to dismiss is DENIED; and
2. The matter is referred back to the assigned Magistrate Judge for further proceeding on the merits of the petition.
IT IS SO ORDERED.