I. INTRODUCTION

20 On May 3, 2021, Petitioner Charles Trayzon Gilbert filed a Petition for a Writ of 21 Habeas Corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1. The First Amended Petition 22 (“FAP”) challenges the California Department of Corrections Board of Parole Hearings’ 23 (“Parole Board”) denial of Gilbert’s Petition to Advance Parole. Dkt. No. 4.1 On 24 July 23, 2021, Respondent Marcus Pollard filed a Motion to Dismiss the FAP because: 25 (1) “its resolution would not necessarily reduce the duration of [Gilbert’s] prison 26 27 1 When referencing page numbers for documents filed with the Court, the Court’s citation 28 1 sentence”; and (2) Gilbert “fails to explain how his federal rights have been violated.” Dkt. 2 No. 6-1 at 3, 4. 3 Upon consideration of the pleadings and all supporting documents, the Court 4 recommends entering judgment in favor of Respondent. 5 II. FACTUAL AND PROCEDURAL BACKGROUND 6 In 1997, a jury found Gilbert guilty of aggravated mayhem, robbery, and two counts 7 of attempted murder. See Dkt. No. 7 at 23. Gilbert was sentenced to thirty-three years to 8 life in state prison. Dkt. No. 4 at 1. 9 On November 8, 2017, the Parole Board denied Gilbert parole at his initial suitability 10 hearing. Dkt. No. 7 at 14. The Board determined Gilbert would be eligible for another 11 suitability hearing in seven years. Id. 12 On June 23, 2020, Gilbert filed a Petition to Advance Parole (“PTA”) pursuant to 13 California Penal Code § 3041.5(d)(1). Id. at 19. In support, he attached various training 14 certificates, psychological evaluations, remorse and support letters, and an education 15 report. Id. at 19–160. On August 13, 2020, the Parole Board denied the PTA. Id. at 14. The 16 Board determined Gilbert did not meet the criteria for parole advancement “in light of the 17 recency and severity of . . . serious rule violations[,] . . . his continued inability to abide by 18 rules and conditions” while incarcerated, and his continued “behavioral instability.” Id. 19 On September 21, 2021, Gilbert filed a Petition for Writ of Habeas Corpus in the 20 Supreme Court of California “challenging the decision of the [Parole Board].” Dkt. No. 4 21 at 1. On December 23, 2020, the court denied Gilbert’s Petition. Id. 22 On May 3, 2021, Gilbert filed a Petition for Writ of Habeas Corpus in this Court 23 naming “California Department of CDCR” as Respondent. Dkt. No. 1 at 1. On 24 May 5, 2021, the Court dismissed this Petition without prejudice for failing to name a 25 proper respondent. See Dkt. No. 3. On May 19, 2021, Gilbert filed the FAP naming Marcus 26 Pollard (Warden) as Respondent. Dkt. No. 4 at 1. On July 23, 2021, Respondent filed a 27 Motion to Dismiss. Dkt. No. 6. On August 11, 2021, Gilbert filed an Opposition. Dkt. 28 No. 7. 1 III. STANDARD OF REVIEW 2 Gilbert’s FAP is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism 3 and Effective Death Penalty Act of 1996 (“AEDPA”). Under the AEDPA, a federal court 4 may not grant a habeas petition on any matter adjudicated on the merits by a state court 5 unless that decision was: (1) contrary to or involved an unreasonable application of clearly 6 established federal law; or (2) based on an unreasonable determination of the facts given 7 the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d); Schriro v. 8 Landrigan, 550 U.S. 465, 473–77 (2007). 9 A district court may dismiss a petition if it “plainly appears from the face of the 10 petition . . . that the petitioner is not entitled to relief in the district court. . . .” Rule 4 of the 11 Rules Governing Section 2254 Cases; see also O’Bremski v. Maass, 915 F.2d 418, 420 12 (9th Cir. 1990) (affirming district court’s order summarily dismissing petition “based on 13 its conclusion that facts alleged in [petitioner’s] petition did not entitle him to habeas relief 14 as a matter of law” under Rule 4). The Court reviews Respondent’s motion pursuant to its 15 authority under Rule 4. 16 IV. DISCUSSION 17 Gilbert alleges he “is entitled to an advancement of his parole suitability hearing 18 date” because the Parole Board’s denial of his PTA violated due process. Dkt. No. 4 at 7. 19 Respondent argues the FAP does not state a cognizable claim for federal relief because (1) 20 “its resolution would not necessarily reduce the duration of [Gilbert’s] prison sentence;” 21 and (2) it “is based solely on the application of state law.” Dkt. No. 6-1 at 3, 4. The Court 22 addresses each argument in turn. 23 A. Granting the FAP Would Not Necessarily Result in Gilbert’s Release 24 Courts lack federal habeas jurisdiction unless the relief sought would “necessarily 25 lead to [petitioner’s] immediate or earlier release from confinement.” Nettles v. Grounds, 26 830 F.3d 922, 935 (9th Cir. 2016). That condition is not met here. 27 In Nettles, petitioner challenged a disciplinary decision resulting in the forfeiture of 28 30 days of credit, which he claimed negatively impacted his parole eligibility. Id. at 927. 1 The Ninth Circuit concluded there was no federal jurisdiction: “Because the parole board 2 has the authority to deny parole ‘on the basis of any grounds presently available to it,’ the 3 presence of a disciplinary infraction does not compel the denial of parole, nor does an 4 absence of an infraction compel the grant of parole.” Id. at 935 (quoting Ramirez v. Galaza, 5 334 F.3d 850, 859 (9th Cir. 2003)); see also Sandin v. Conner, 515 U.S. 472, 487 (1995) 6 (“The decision to release a prisoner rests on a myriad of considerations.”). 7 Nettles controls here. Although success on Gilbert’s claim might result in advancing 8 the date of his next parole suitability hearing, the Parole Board could still deny parole at 9 that hearing. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (holding no habeas 10 jurisdiction where “[s]uccess for [petitioner] means at most a new parole hearing at which 11 . . . parole authorities may, in their discretion, decline to shorten his prison term.”); Due v. 12 Bd. of Parole Hearings, No. 18-cv-1028-JAK-E, 2018 WL 3740520, at *6 (C.D. Cal. May 13 18, 2018) (“Petitioner’s claim that the Board should have applied [a different deferral 14 period for his next parole suitability hearing], if successful, would not result in Petitioner’s 15 immediate or speedier release; at most, success on this claim would advance the date of 16 Petitioner’s next parole suitability hearing. . . . Accordingly, the Court lacks jurisdiction to 17 consider Petitioner’s . . . claim.”), report and recommendation adopted, 2018 WL 3738958 18 (Aug. 3, 2018). 19 Gilbert’s FAP alleges the Parole Board’s conduct “entitle[s] [Gilbert] to an 20 advancement of his parole suitability hearing date . . . .” Dkt. No. 4 at 7. Advancement, 21 however, would not necessarily result in his immediate or speedier release. The Court, 22 therefore, lacks jurisdiction over Gilbert’s FAP. 23 B. The FAP Is Based on State Law 24 Even if the Court had jurisdiction over the FAP, Gilbert’s claim that the Parole Board 25 “failed to consider the merits of petitioner’s [PTA]” and “rel[ied] on false information in 26 its review” (Dkt. No. 4 at 7–8) is not cognizable on federal habeas review. 27 Claims involving the interpretation or application of state law are not cognizable on 28 federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many 1 times that federal habeas corpus relief does not lie for errors of state law.”) (internal 2 quotation omitted); see also Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (“[I]t is a well- 3 established principle of federalism that a state decision resting on an adequate foundation 4 of state substantive law is immune from review in the federal courts.”); see also Whitfield 5 v. Vaughn, 272 F. App’x 591, 592 (9th Cir. 2008) (holding petitioner’s claim that the parole 6 board “failed to set a parole hearing within the time frame mandated by California law” 7 alleged only a state law violation not cognizable on federal habeas review). 8 Gilbert’s FAP alleges the Parole Board improperly denied his PTA by “fail[ing] to 9 consider [its] merits” and “apply[ing] documented mitigating factors.” Dkt. No. 4 at 7. As 10 courts have recognized, this is a question of state law, which federal courts lack jurisdiction 11 to review. See, e.g., Saffold v. Hill, No. 12-cv-3064-JAM-DAD-P, 2013 WL 6283893, at 12 *1 (E.D. Cal. Dec. 4, 2013) (“District Courts throughout the Ninth Circuit have consistently 13 rejected claims advanced by state prisoners that the Board violates federal law when it 14 denies a petition to advance parole hearings.”); Charity v. Ochoa, No. 12-cv-4825-R-AJW, 15 2012 WL 4471592 at *1 (C.D. Cal. June 15, 2012) (“[P]etitioner’s challenge to the Board’s 16 decision not to hold his next parole hearing sooner involves only the Board’s compliance 17 or non-compliance with state statutes and regulations governing the scheduling of parole 18 suitability hearings, so it does not present a federal question.”). The Court, therefore, lacks 19 jurisdiction to review Gilbert’s FAP because it is based on state law. 20 V. CONCLUSION & RECOMMENDATION 21 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue 22 an Order: (1) approving and adopting this Report and Recommendation; and (2) denying 23 Gilbert’s FAP. 24 IT IS ORDERED that on or before January 13, 2022, any party to this action may 25 file written objections with the Court and serve a copy on all parties. The document should 26 be captioned “Objections to Report and Recommendation.” 27 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 28 the Court and served on all parties within seven (7) days of the filing of the objections. 1 The parties are advised that failure to file objections within the specified time may 2 || waive the right to raise those objections on appeal of the Court’s order. See Turner v. 3 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 4 |} 1991). 5 IT IS SO ORDERED. 6 || Dated: December 29, 2021 —

PTT

Honorable Daniel E. Butcher United States Magistrate Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28