The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner Robert Johnson is currently incarcerated at the California State Prison (Solano) in Vacaville, California. In 1979, he was convicted by a jury of one count of first degree murder, with a prior conviction for second degree murder, and was sentenced in Fresno County Superior Court to a term of twenty-five-years-to-life, plus five years, with the possibility of parole. (Docket 1 at 1.) Having exhausted his remedies in the courts of California, petitioner seeks federal habeas corpus relief under 28 U.S.C. § 2254. Specifically, he challenges his 2008 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn2 (See id.)
Petitioner had been in custody for twenty-nine years at the time of his 2008 hearing and approximately thirty years as of this writing.
Respondent has filed an answer to the petition in which he contends that petitioner's state habeas corpus petition failed to comply with California's state court filing rules on successive petitions, resulting in a procedural default that bars federal consideration of his claims. (See Dkt. 12 at 7-8.) In the alternative, respondent asserts that petitioner's claims are without merit. (See id. at 8-16.)
Petitioner filed a traverse to respondent's answer in which he asserts that his petition was not successive and denies each of respondent's arguments. (See Dkt. 13.)
Having thoroughly reviewed the record and briefing of the parties, it is recommended that the Court find as follows:
(1) Because the record does not establish with any clarity that the California courts deemed the petition to be barred as successive, this Court should consider the petition on the merits;
(2) The U.S. Supreme Court has clearly held that where a state statutory scheme includes mandatory language that creates a presumption of parole release based on certain designated findings, that statute gives rise to a federal constitutional liberty interest in parole;
(3) California statutes and regulations contain such mandatory language;
(4) That language provides that a prisoner serving an indeterminate life sentence has an expectation of parole release unless the Board or the Governor finds that he will pose an unreasonable risk of danger to society if released on parole;
(5) The California Supreme Court has interpreted this statutory language to provide that an adverse parole decision must be supported by "some evidence" of current dangerousness;
(6) Whether "some evidence" of current dangerousness exists is determined in accordance with California law;
(7) Applying these standards, the record before the Board in 2008 contained "some evidence" of petitioner's dangerousness;
(8) The denial of parole therefore did not violate petitioner's federal due process rights, and the decision of the Fresno County Superior Court upholding the denial was a reasonable application of clearly established federal law;
(9) Petitioner's Ex Post Facto Clause claims should be denied as petitioner fails to demonstrate that the legislative amendments at issue have disadvantaged him; and
(10) The Court should deny the petition for a writ of habeas corpus and dismiss this action with prejudice.
The Board's 2008 report referenced the 2004 Board's summary of the facts of the commitment offense, but failed to include that summary in the record. (See Dkt. 1, Exhibit C at 6.) This Court therefore relies upon the Fresno County Probation Officer's Report, dated July 2, 1979, which was included in the record and which summarized the background facts in this case as follows:
On March 12, 1979 Fresno police officers were dispatched to the scene of a shooting. Upon arrival, officers observed Charles Williams lying on the ground, bleeding from the abdomen. The victim was subsequently transported to Valley Medical Center. Approximately one hour later, officers were advised that Mr. Williams had died during surgery. A subsequent autopsy revealed that the cause of death was due to multiple gunshot wounds. One of the wounds was in the right chest area, the second in the left chest area, a third wound to the left wrist and a fourth wound to the right abdomen.
According to the POR, Mrs. Patricia Williams testified that she drove up to her house with friends and observed Robert Johnson exit her home. She also observed Charles Williams exit the home. A conversation ensued between Williams and Johnson. Mrs. Williams stated that, although she did not hear the conversation initially, the voices were somewhat soft. Later however, Johnson began talking in a rather loud voice. Mrs. Williams exited her car and approached the two men. As she approached, she heard Johnson state, "You said you wanted to speak to my wife. There she is. You want to talk to her. There she is, because you're not going to talk to her unless you talk to her in front of me." Williams then lit a cigarette and smiled in Johnson's direction. Johnson stated, "Don't be smiling in my face man." Johnson then stepped back, opened his coat, and began firing with a handgun in William's direction. Patricia Williams testified that at the time Johnson fired, Williams had one hand at his side and another hand at his mouth with a lit cigarette. Williams then grabbed his side with one hand and grabbed Patricia for support with the other. Mrs. Williams eased Charles Williams to the ground and then laid on top of him in an effort to prevent Johnson from shooting Williams again. While they were on the ground, Johnson moved towards the front of them and fired two more shots.
A witness who had been in the vehicle with Mrs. Williams testified that she had observed Johnson at a party a few days prior to the shooting. He had a handgun at the party. It was further stated that after the shooting Johnson had said, "That nigger was doomed to die. If I hadn't shot him, I was going to beat him to death sooner or later." Mr. Johnson subsequently surrendered to authorities on March 15, 1979.
During the 2008 hearing, the Board also incorporated by reference petitioner's version of the facts leading up to the commitment offense. (See id., Exh. C at 7.) Again, those facts are not included in this record. (See id.) Petitioner was convicted by a jury of one count of first degree murder, with a prior conviction for second degree murder, and was sentenced in Fresno County Superior Court to a term of twenty-five-years-to-life, plus five years, with the possibility of parole. (See Dkt. 1 at 1.) He began serving his life sentence in the California Department of Corrections on July 23, 1979. (See id., Ex. C at 1.) Petitioner's minimum eligible parole date was set for August 15, 1998. (See id.) He has been incarcerated for more than thirty years for this offense and twelve years past his minimum eligible parole date.
The parole denial, which is the subject of this petition, followed a parole hearing held on December 31, 2008. (See id.) This was petitioner's fifth parole application, including his initial parole consideration hearing. His previous applications were also denied.*fn3 After his 2008 denial, petitioner filed habeas corpus petitions in the Fresno County Superior Court, and the California Court of Appeal and Supreme Court. Those petitions were unsuccessful. This federal habeas petition followed. Petitioner contends his 2008 denial violated his federal rights under the Due Process Clause and the Ex Post Facto Clause of the U.S. Constitution. Thus, the habeas petition before this Court does not attack the propriety of his conviction or sentence, but solely challenges the Board's 2008 decision finding him unsuitable for parole and the Board's application of post-conviction legislative amendments governing the parole hearing process.
III. PARTIES' CONTENTIONS
Petitioner contends that the Board violated his state and federal due process rights by finding him unsuitable for parole based solely upon the immutable facts of the commitment offense and his prior criminal history. (See Dkt. 1 at 5-5a3.) Specifically, he asserts that there is "no evidence" to support the Board's conclusion that his expression of remorse was not genuine. (See id.) In addition, petitioner argues that amendments to the California Penal Code and California Code of Regulations over the past thirty years, including the recent amendment by "Proposition 9, California's Victims' Bill of Rights Act of 2008: Marsy's Law," have violated his state and federal rights to be free from ex post facto laws.*fn4 (See id.) See Cal. Penal Code § 3041.5(b)(3)(2009) (Marsy's Law changed aspects of California's parole system, including the frequency and availability of parole hearings for petitioners found not suitable for parole).
Respondent claims that the petition should be denied because petitioner procedurally defaulted by filing successive state court petitions. (See Dkt. 12 at 6.) If the court considers the merits of the federal petition, respondent contends that petitioner does not have a constitutionally protected liberty interest in being released on parole, that the "some evidence" standard is inapplicable in this context, and that even if he does have a protected liberty interest, the Board adequately predicated its denial of parole on "some evidence." (See id. at 11-16.) Respondent also contends that petitioner's Ex Post Facto Clause claim is without merit as "the  amendment creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes. . . ." (See id. at 9-10.) Respondent does not address petitioner's claim that thirty years of amendments have also violated his rights under the Ex Post Facto Clause. In sum, respondent argues that ...