The opinion of the court was delivered by: Susan Illston United States District Judge
Steven McCauley, an inmate at San Quentin State Prison, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases. He paid the filing fee.
McCauley was convicted in Alameda County Superior Court of second degree murder and sentenced to a term of fifteen years to life in prison. His petition does not challenge his conviction but instead challenges a decision by the Board of Prison Terms ("BPT") at a June 4, 2004 hearing that found him not suitable for parole. McCauley alleges that he filed habeas petitions in state courts, including the California Supreme Court, before filing this action.
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A district court considering an application for a writ of habeas corpus shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
McCauley alleges that the BPT's decision was not supported by sufficient evidence and that the BPT has breached his plea agreement by denying him parole, in violation of his right to due process. Liberally construed, the allegations state cognizable claims for due process violations. See Board of Pardons v. Allen, 482 U.S. 369 (1987); Morales. v. California Dep't of Corrections , 16 F.3d 1001, 1005 (9th Cir. 1994), rev'd on other grounds, 514 U.S. 499 (1995) (due process requires that "some evidence" must support the parole authority's decision); Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003).
McCauley also alleges that the refusal to grant him parole amounts to an ex post facto violation because the BPT, by denying him parole, has essentially converted his sentence to one of 25-to-life or life without parole. McCauley has not stated a claim for relief for an ex post facto violation because the decision to deny parole for this prisoner, purportedly contrary to law and regulation, is not a "law" itself, which is a necessary element of an ex post facto violation. Nulph v. Faatz, 27 F.3d 451, 455 (9th Cir. 1994).
For the foregoing reasons,
1. The due process claim in the petition warrants a response from respondent. The Ex Post Facto claim is dismissed without leave to amend.
2. The clerk shall serve by certified mail a copy of this order, the petition and all attachments thereto upon respondent and respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on petitioner.
3. Respondent must file and serve upon petitioner, on or before September 16, 2005, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a copy of all portions of the parole hearing record that have been previously ...