Opinion
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMIS, FINDINGS AND RECOMMENDATION REGARDING PETITIONER'S MOTION TO STRIKE REPLY (Doc. 19)
MICHAEL J. SENG, District Judge.
Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Amy A. Daniel, Esq. of the office of the Attorney General of California.
This information is derived from the petition for writ of habeas corpus, Respondent's motion to dismiss the petition, and the lodged documents in support of Respondent's motion to dismiss.
A. Procedural History
Petitioner is currently in the custody of the California Department of Corrections pursuant to an August 5, 1982, conviction of second degree murder with an enhancement for use of a weapon. Petitioner was sentenced to an indeterminate prison term of 17 years to life in state prison.
On January 7, 2010, Petitioner filed the present petition. (Pet., ECF No. 1.) In the petition, Petitioner asserts eight due process and other constitutional claims relating to his eighth parole consideration hearing in 2007 and a rehearing in 2008.
On January 30, 2007, after Petitioner's eighth parole consideration hearing, the Board of Parole Hearings ("Board") found Petitioner unsuitable for, and denied him, parole for a year. (Pet. at 78-86.) On May 14, 2007, Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court, challenging the Board's denial of parole. (Mot. To Dismiss, Ex. 1, ECF No. 15-1.) On June 1, 2007, the Superior Court ordered Respondent to file a return responding to the allegations of the petition for writ of habeas corpus. (Pet. at 88-89.) The court specifically requested respondent to address the issue of whether Petitioner's conviction, by itself, was sufficient to justify the denial of parole. (Id.) On October 18, 2007, the superior court granted the writ to the extent of requiring the Board to reconsider its decision denying Petitioner parole. (Mot. To Dismiss, Ex. 2, ECF No. 15-1.)
In response to the Superior Court order, the Board reconvened on January 3, 2008. However, it lacked a copy of the superior court order and related documents and so postponed the hearing. (Pet. at 94-108.) On January 18, 2008, in response to the delay, Petitioner filed a motion for reconsideration with the Fresno County Superior Court. The court concluded that the Board had delayed the hearing for legitimate reasons and so denied the motion. (Pet. at 111-112.)
On February 13, 2008, the Board undertook its rehearing of the January, 2007 parole consideration hearing. (Id. at 127-150.) In so doing, it commented just before commencing the hearing that the court order had not imposed any restrictions on the Board and that the Board was to "just redo the hearing." (Id. at 129.) The Board again denied Petitioner parole for a year. (Id. at 149.)
Petitioner then filed a second motion for reconsideration on February 25, 2008; it was denied March 20, 2008 based upon Petitioner's failure to attach sufficient exhibits to the motion. (Id. at 153-54.) On April 21, 2008, Petitioner filed a third motion for reconsideration, or in the alternative, a new writ of habeas corpus with the Fresno County Superior Court. (Id. at 157-58.) The court denied the motion for reconsideration on May 8, 2008, holding that the Board complied with the court's order to hold a rehearing, and it declined to consider the new writ petition on the grounds it did not meet the procedural requirements of such a petition. (Id.)
On May 29, 2008, Petitioner filed a petition for writ of habeas corpus with the California Court of Appeal, Fifth Appellate District challenging the January, 2007 and February, 2008 parole hearings. (Mot. to Dismiss, Ex. 3.) On January 16, 2009, the petition was denied without prejudice for failure to exhaust his remedies by first filing a petition with the superior court. (Pet. at 162.)
However, while the appellate court petition was pending, on June 20, 2008, Petitioner filed another petition for writ of habeas corpus with the Fresno County Superior Court, this time challenging the February, 2008 parole consideration hearing. (Mot. to Dismiss, Ex. 4.) On March 9, 2009, the Court denied the petition in a reasoned decision. (Id., Ex. 6.) On March 27, 2009, Petitioner filed another petition for writ of habeas corpus with the California Court of Appeal, Fifth Appellate District, this time challenging his February, 2008 parole hearing. The petition was denied on May 1, 2009.
On June 4, 2008, Petitioner appeared again before the Board, for this, his ninth parole consideration hearing. However, because of confusion regarding the court's order on the rehearing of Petitioner's eighth parole consideration hearing, the Board postponed the hearing to obtain transcripts from the Fresno County Superior Court and attempt to determine what was to take place at this ninth hearing. (Pet. at 173-214.) The hearing was held ten months later on April 14, 2009, and Petitioner was denied parole for three years. (Id. at 48.)
Petitioner is challenging the April 2009 denial of parole in a separate action. See Thomas v. Allison, Case No. 10-cv-01005-OWW-SMS (E.D. Cal. 2010).
Finally, Petitioner files a petition for writ of habeas corpus with the Supreme Court of California on June 24, 2009, challenging the January, 2007 and February, 2008 parole hearings and rasing various due process concerns with regard to the Board's procedures. (Mot. to Dismiss, Ex. 7.) That petition was also denied on December 2, 2009.
In summary, Petitioner received his eighth parole consideration hearing, and pursuant to an order of the superior court, a rehearing. Petitioner has brought several habeas petitions before the state courts relating both to the original hearing and the rehearing.
On January 7, 2010, Petitioner filed the instant petition for writ of habeas corpus in this Court raising eight different grounds for relief, listed as follows:
1.) California sentencing scheme violates Sixth and Fourteenth Amendments of the United States Constitution.
2.) The Board's January, 2007 finding of special circumstances to deny parole violates the due process clause.
3.) The Board's January, 2007 decision was arbitrary and capricious and violated due process.
4.) The Board's continued reliance upon the commitment offense violates due process.
5.) The Fresno County Superior Court's order for rehearing was void, vague and violated due process, and the Board and district attorney breached an agreement made with Petitioner.
6.) The Board and district attorney breached an agreement made with Petitioner violating due process; Petitioner's attorney was ineffective; the delay in holding subsequent parole hearings violated due process.
7.) The January 2008 psychological evaluation regarding Petitioner's lack of insight conflicted with previous reports and prejudiced his February, 2008 hearing. 8.) The Fresno County Superior Court was in error in denying Petitioner's petition based on evidence presented in the 2008 psychological report. (Pet. at 1-55.)
B. Respondent's Motion to Dismiss
On July 6, 2010, Respondent filed a motion to dismiss claims in the petition relating to the January, 2007 parole consideration hearing and claims regarding the postponement of Petitioner's parole hearings. (Mot. to Dismiss.)
In the motion to dismiss, Respondent unfortunately does not address each claim presented by Petitioner. First, Respondent alleges that the claims presented in the petition relating to the January, 2007 Board decision lack standing as Petitioner has already obtained relief from the state court in the form of another hearing, and so he is not entitled to further relief. Respondent then addresses how two of the claims raised by Petitioner are not federally cognizable, i.e., his claim that the superior court order violated due process because it was vague and his contention that the Board and the attorney general breached an agreement by postponing his hearing and not providing a parole transcript.
Finally, Respondent asserts that Petitioner has not asserted cognizable legal grounds for challenging statements made in his psychological evaluation prepared in January, 2008.
C. Petitioner's Motion to Strike Reply
On July 6, 2010, Respondent filed a motion to dismiss. On July 28, 2010, Petitioner filed an opposition to the motion to dismiss. On August 9, 2010, Respondent filed a reply to the opposition. On September 10, 2010, Petitioner filed an opposition and motion to strike the reply. Petitioner asserts that the reply was filed more than seven (7) days after the opposition as required by the scheduling order of the Court.
II. 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.
Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases indicates 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, e.g., Miles v. Schwarzenegger, 2008 U.S. Dist. LEXIS 72056, 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).
Furthermore, the federal courts have duty to construe pro se pleadings liberally and a pro se complaint, however inartfully plead, must be held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Acknowledging the difficulty in determining which of Petitioner's claims relate to the January, 2007 hearing, February 2008 hearing, or due process concerns in general, the Court shall determine the cognizability of Petitioner's claims based on subject matter.
B. Claims Relating to Petitioner's January, 2007 Board Hearing
1. Respondent's Claims Regarding Article III Standing
Respondent asserts that Petitioner lacks standing to challenge the January, 2007 Board hearing because Petitioner's injury is abstract or theoretical inasmuch as Petitioner has received relief in the form of another hearing. Respondent's reliance on Article III standing requirements is misplaced. See United States v. Hays, 515 U.S. 737, 742-743 (1995) ("It is by now well settled that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact'”an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'") quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 119 L.Ed. 2d 351, 112 S.Ct. 2130 (1992).
Petitioner does present an actual federal case or controversy. Petitioner challenges the denial of parole at his January, 2007 Board hearing based on 14th Amendment Due Process concerns. The Ninth Circuit, in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) and subsequent opinions, has held that a due process challenge to a California parole denial is an actual cognizable action that may merit relief. ("Hayward specifically commands federal courts to examine the reasonableness of the state court's application of the California "some evidence" requirement, as well as the reasonableness of the state court's determination of the facts in light of the evidence. Pearson v. Muntz, 606 F.3d 6060, 609 (9th Cir. 2010).)
The Court disagrees with the claim that Petitioner's injuries are "abstract and theoretical." The potential injury here is the denial of parole and continued confinement. Such injury is concrete and unequivocally impacts Petitioner's fundamental interest in his own liberty. Accordingly, it is recommended that Petitioner's motion to dismiss based on lack of standing be denied.
2. Mootness
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
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.
The 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). 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. 1971).
While not addressed by Respondent in the motion to dismiss, Petitioner's claims relating to the January, 2007 Board hearing are moot and not entitled to relief. Under Article III of the United States Constitution, federal courts may adjudicate only actual, ongoing cases or controversy. Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed. 2d 400 (1990). Mootness is a threshold jurisdictional issue. Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005). "This means that, throughout the litigation, the [petitioner] must have suffered, or be threatened with an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed. 2d 43 (1998). Accordingly, if events transpire during litigation that render a court unable to grant the requested relief, the case becomes moot, and the court is without jurisdiction to hear the case. Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed. 2d 453 (1996).
In this case, Petitioner's claims regarding the January, 2007 Board hearing are moot because no viable issues remain to be resolved. Those allegations were rendered moot when Petitioner was given a new hearing in February, 2008.
Generally speaking, "procedural errors are cured by a holding a new hearing in compliance with due process requirements." See Batanic v. Immigration and Naturalization Serv., 12 F.3d 662, 667 (7th Cir. 1993). It has recently been decided that when a California state prisoner's parole decision is not based on some evidence his federal remedy is limited to a new, properly conducted parole hearing. See Haggard v. Curry, 623 F.3d 1035 (9th Cir. 2010) ([W]here the Board errs in applying the "some evidence" standard, the only expectation a prisoner has under California law is that of a new, properly conducted parole-suitability determination by the Board.")
When a petition such as this succeeds, this Court's remedy is to grant Petitioner a new parole consideration hearing. However, the Fresno County Superior Court has already provided Petitioner that relief in providing the new hearing conducted in February, 2008. Since this Court could afford Petitioner no greater remedy than he has already received, his claims regarding the January, 2007 hearing are moot and must be dismissed. Claims two and three of the petition must be dismissed. To the extent other claims relate to the January, 2007 hearing, those too must be dismissed as moot.
C. Claims Relating to Petitioner's February, 2008 Board Hearing
Petitioner claims, including, but not limited to claim eight, challenge the February, 2008 Board hearing. Respondent does not object to Petitioner's right to challenge his February, 2008 Board hearing. Accordingly, Petitioner may proceed on claim eight and any other claims which relate to a possible violation of due process in relation to his February, 2008 Board hearing.
D. Other Claims Raised by Petitioner
1. California Sentencing Scheme Violates Sixth and Fourteenth Amendments
Petitioner first claims that he has been denied due process of law because he has served greater than the minimum term for his offense. (Pet. at 14.) Petitioner contends that the Board's findings are based on facts not submitted to a jury or proven beyond a reasonable doubt, thereby exposing Petitioner to a greater penalty without a right to trial. (Id.) This claim is without merit.
"In California, when a prisoner receives an indeterminate sentence of fifteen years to life, the indeterminate sentence is in legal effect a sentence for the maximum term, subject only to the ameliorative power of the [parole authority] to set a lesser term.'" Hayward, 603 F.3d at 561 (footnote omitted); Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007) ("Under California law, prisoners serving an indeterminate sentence for... murder may serve up to life in prison, but become eligible for parole consideration after serving minimum terms of confinement." (citations omitted)). To the extent Petitioner claims the Board's decision denying him parole violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), or Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed. 2d 856 (2007), such claim is without merit "because the Board did not increase [petitioner's] sentence beyond the statutory maximum of life imprisonment for his crime of [first] degree murder." Duesler v. Woodford, 269 Fed. Appx. 670, 671 (9th Cir. 2008); Abraham v. Marshall, 288 Fed. Appx. 378, 380 (9th Cir. 2008); see also Orozco v. Clark, 2010 U.S. Dist. LEXIS 34270, 2010 WL 1407532, *6 (C.D. Cal.) ("[T]he Board's decision denying petitioner parole did not increase petitioner's sentence of fifteen years to life in state prison. While petitioner might have hoped or expected to be released sooner, the Board's decision to deny him a parole release date because he would present an unreasonable risk of danger to society has not enhanced or otherwise altered' his punishment.'" (citations omitted)); Paddock v. Mendoza-Powers, 674 F.Supp.2d 1123, 1128-29 (C.D. Cal. 2009) ("[A]bsent a determination of parole suitability by the [Board]',... petitioner remains subject to an indeterminate life sentence,... and petitioner's ongoing detention does not deprive petitioner of due process of law[.]'" (citations omitted)).
Petitioner's first claim does not present a cognizable ground for federal habeas corpus relief. Accordingly, the claim must be dismissed.
2. The Fresno County Superior Court's Order was Vague
Petitioner's fifth claim contends that the Fresno County Superior Court's order for the Board to reconsider its decision was vague and violated due process. (Pet. at 40-45.) Certainly, the superior court's order is succinct. It states, "Court grants the writ in that the Court is not ordering release by the Board, but the Board is to reconsider their decision." (Mot. to Dismiss Ex. 2.) Furthermore, as described above, the order caused confusion on the part of the Board, causing postponements of the hearing.
Regardless, Petitioner's claims do not raise a cognizable grounds for federal habeas relief. A state court's remedy for a parole denial not based on some evidence of current dangerousness is to order an new parole suitability hearing. See Haggard, 623 F.3d 1035, 1041-42 (citing In re Prather, 50 Cal.4th 238, 252 (2010).) In ordering the Board to conduct a new hearing, the Court is not to limit the evidence presented before the board. Id. at 551. ("Although, as noted above, we have not previously considered this precise issue, we observed in Rosenkrantz, supra, 29 Cal.4th 616, that a proper order after a grant of habeas corpus relief should direct the Board to "proceed in accordance with due process of law", citing appellate decisions supporting this proposition. These cases confirm our conclusion here that it is improper for a reviewing court to direct the Board to reach a particular result or to consider only a limited category of evidence in making a suitability determination." (Citations omitted.))
Accordingly, the Court could only order the Board to conduct a new hearing in accordance with due process of law. Although the superior court order fails to state explicitly that the hearing was to be conducted in accordance with due process, it is implicit in the order that a hearing before the Board be conducted in accordance with due process principles as required by California state statutes and regulations. Petitioner has not presented a basis upon which one could find that the superior court order violates the Constitution, laws, or treaties of the United States; he therefore has failed to not provide a cognizable ground for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62,67-68 (1991). The Court recommends that claim five of the petition be dismissed on such grounds.
3. The Board and District Attorney Breached an Agreement With Petitioner
In Petitioner's sixth claim, he asserts that the Board and District Attorney breached an agreement with Petitioner by not holding the second parole consideration hearing at the specified time and by not obtaining a copy of the transcript of the superior court. (Pet. at 46-49.) Petitioner's claims are without merit.
It is undisputed that the Board postponed the rehearing of Petitioner's eighth parole suitability hearing from January 3, 2008 to February 13, 2008 to attempt to determine what the superior court had ordered. It is further undisputed that the Board postponed Petitioner's ninth suitability hearing from June 4, 2008 to April 14, 2009. Petitioner asserts that the delays amounted to breach of a contractual arrangement between the parties and violated the Sherman Act. (Pet. at 48-49.)
As Respondent correctly states, no enforceable contracts were created between the parties, and Petitioner's claims of breach of contract lack merit.
Regardless, pro se pleadings are to be construed liberally. Erickson, 551 U.S. at 94. Although the delays caused by postponement of parole hearings did not violate Petitioner's constitutional rights via breach of contract, it is possible that the delays caused by the Boar's failure to timely hold the rehearing of Petitioner's eighth parole suitability hearing and ninth parole suitability hearing violated Petitioner's due process rights.
A civil rights action under 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of his confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. "Habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003).
Any remedy for Petitioner's challenge based on delays could do no more than rectify the procedural issues surrounding his hearing, not provide for Petitioner's immediate release. For such a challenge to the conditions of his confinement, a civil rights complaint pursuant to 42 U.S.C. § 1983 is his "proper remedy." Preiser, 411 U.S. at 499. The Court expresses no opinion as to the merits of such a civil rights complaint.
4. Petitioner's Psychological Report was Prejudicial
Petitioner asserts that the January, 2008 psychological report conflicts with the assessment of other psychologists and was prejudicially relied upon during his parole hearing. (Pet. at 50-54.) For instance, Petitioner points out that when assessing Petitioner's potential risk of future violence, the report refers to a "Mr. Carranza," potentially bringing the reliability of the report into question. (Psychological Report at 8.) To the extent Petitioner asserts that the Board violated his due process rights by relying on mistaken information in his psychological report to deny him parole, such claims are cognizable and shall not be dismissed.
However, to the extent Petitioner challenges the quality of the psychological report in general as a ground for habeas relief, the Court is unaware of any authority for such a challenge and Petitioner cites none. Accordingly, to the extent that Petitioner challenges the psychological report in general, the claim must be dismissed for failure to show a clear violation for federal law. Otherwise, to the extent Petitioner asserts his February, 2008 parole denial violated his due process by relying on inaccurate statements in the psychological report, such claims are cognizable and shall proceed.
E. Petitioner's Motion to Strike Reply
Petitioner moves to strike Respondent's reply as untimely. Petitioner asserts that Respondent's reply was filed at least fourteen days after Petitioner's opposition.
According to the proof of service attached to Petitioner's opposition, Petitioner mailed the opposition to Respondent on July 26, 2010. Accordingly, service of the opposition was complete on the day of mailing. Fed.R.Civ.P. 5(b)(2)(C). Respondent's reply was filed with the Court and served by mail on Petitioner on August 9, 2010, fourteen (14) days after the opposition was served. According to the scheduling order filed by this Court on May 6, 2010, Respondent was to file a reply within seven (7) days after the service of the opposition. (Scheduling Order, ECF No. 7.) Federal Rule of Civil Procedure 6(d) entitles Respondent to three (3) additional days to serve the reply. Respondent therefore had ten days in which to serve the reply. Ten days after July 26, 2010 is August 5, 2010. Petitioner did not serve the reply until August 9, 2010.
Petitioner asserts that Respondent, despite signing under penalty of perjury, mailed the reply on August 19, 2010, rather than on August 9, 2010, as stated in the proof of service. As the reply was untimely served even if mailed on August 9, 2010, the Court need not address Petitioner's assertions. The Court cautions both parties that falsely signing under penalty of perjury, even for matters such as proofs of service, can carry significant consequences.
Respondent did not timely serve the reply. It is recommended that Petitioner's motion to strike the reply be granted and that the reply be disregarded.
III. CONCLUSION
The Court recommends that Respondent's motion to dismiss the petition for failure to present federally cognizable claims be GRANTED in part and DENIED in part as follows:
1.) The Court recommends that Petitioner's first claim that the California sentencing scheme violates the Sixth and Fourteenth Amendments be DISMISSED;
2.) The Court recommends that Petitioner's second claim that the Board's January, 2007 violated the due process clause be DISMISSED;
3.) The Court recommends that Petitioner's third claim that the Board's January, 2007 decision was arbitrary and capricious and violated due process be DISMISSED;
4.) To the extent that Petitioner's fourth claim is directed to the Board's January, 2007 decision, the Court recommends that the claim be DISMISSED. However, to the extent that the claim is directed to the Board's February, 2008 decision, the Court recommends that the motion to be dismiss be DENIED;
5.) The Court recommends that Petitioner's fifth claim that the Fresno County Superior Court's order for rehearing was void be DISMISSED;
6.) The Court recommends that Petitioner's sixth claim that the Board and district attorney breached an agreement made with Petitioner violating due process be DISMISSED WITHOUT PREJUDICE to bring a civil rights complaint;
7.) The Court recommends that Petitioner's fifth claim regarding the January 2008 psychological evaluation be DISMISSED to the extent that the claim does not address how the psychological evaluation affected the decision of the Board at the February, 2008 hearing; and
8.) Respondent does not challenge Petitioner's right to challenge the February, 2008 Board hearing as alleged in Petitioner's eighth claim.
Further, the Court recommends that Petitioner's motion to strike the reply is GRANTED and the reply is disregarded.
IV. RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be GRANTED in part, and DENIED in part as described above. The Court Further recommends that Petitioner's motion to strike the reply is GRANTED and the reply is disregarded.
This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after the date of service of this Findings and Recommendation, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the Objections shall be served and filed within fourteen (14) days after service of the Objections. The Finding and Recommendation will then be submitted to the District Court for review of the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The parties are advised that failure to file objections within the specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.