FINDINGS AND RECOMMENDATIONS
Petitioner Kevin Jackson is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. §§ 2254. Petitioner stands convicted of kidnaping for robbery and is currently serving a sentence of life with the possibility of parole pursuant to a judgment of the Los Angeles County Superior Court. Petitioner does not challenge the constitutionality of his conviction, but rather, the execution of his sentence, and specifically, the April 7, 2005 decision of the Board of Parole Hearings ("Board") finding him unsuitable for parole. For the reasons that follow, petitioner is not entitled to relief. The Board's decision that he was unsuitable for parole was supported by some evidence in the record and did not violate his due process rights. Additionally, there was no ex post facto violation as alleged in the petition.
The facts of petitioner's life crime were set forth in the probations officer's report as follows.
On October 4, 1985, at approximately 2:30 a.m., the victim stopped his car at a gas station. Petitioner's crime partner approached the passenger side of the car and asked for a ride. The victim responded that he does not give rides to people. Petitioner approached the driver's side of the car, pointed a gun at the victim, and ordered him to open the door. Petitioner entered the vehicle by way of the driver's side door and sat in the rear seat while his crime partner sat in the front seat on the passenger side. Petitioner ordered the victim to drive. Shortly thereafter, he ordered the victim to stop the car and get out. Petitioner held him at gunpoint while his crime partner removed the victim's wallet from his pants pocket. Petitioner and his crime partner then fled in the victim's car. (Ex. B*fn1 at 2-3.)
Petitioner was sentenced to a life term with the possibility of parole. (Ex. A at 2.) His minimum eligible parole date passed in 1994. On April 7, 2005, the Board of Parole Hearings conducted an eighth subsequent parole suitability hearing and once again found him unsuitable for parole. Petitioner properly raised his claim arising from the Board's denial with the Los Angeles County Superior Court and the California Supreme Court. Those petitions were denied. (Ex. F & H.)
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).
A. Due Process and Parole
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).
A protected liberty interest may arise from either the Due Process Clause or from state laws. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create a protected liberty interest in a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, where a state's statutory scheme uses mandatory language, it "'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." McQuillion, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 12 (1979)). The Ninth Circuit has conclusively determined that California state prisoners who have been sentenced to prison with the possibility of parole have a clearly established, constitutionally protected liberty interest in receipt of a parole release date." Irons v. Carey, 505 F.3d 846, 850-51 (9th ...