The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was sentenced to a term of sixteen years to life with the possibility of parole in 1997, having been convicted of second degree murder with an enhancement for use of a deadly weapon. Petition, p. 1. Petitioner challenges the decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole which became final in January 2010. Petitioner raises three grounds for his challenge: 1) the BPH's unlawful practice of denying parole in 99.7% of initial parole hearings denied him an individualized parole consideration*fn1 ; 2) violation of due process because there was not "some evidence" in the record to support BPH's finding that he poses a current unreasonable risk to public safety; 3) Marsy's Law*fn2 violates the ex post facto and due process clauses of the state and federal constitutions. See Petition.
As to claim 2, on January 24, 2011, the United States Supreme Court in
a per curiam decision found that the Ninth Circuit erred in commanding
a federal review of the state's application of state law in applying
the "some evidence" standard in the parole eligibility habeas context.
Swarthout v. Cooke, 502 U.S. ___, ___ S. Ct. ___, 2011 WL 197627 *2
(Jan. 24, 2011). Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62,
67 (1991), the Supreme Court re-affirmed that "'federal habeas corpus
relief does not lie for errors of state law.'" Id. While the high
court found that the Ninth Circuit's holding that California law does
create a liberty interest in parole was "a reasonable application of
our cases" (while explicitly not reviewing that holding),*fn3
the Supreme Court stated:
When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication-and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal.
Swarthout v. Cooke, at *2.
Citing Greenholtz,*fn4 the Supreme Court noted it had found under another state's similar parole statute that a prisoner had "received adequate process" when "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout, at *2. Noting their holding therein that "[t]he Constitution  does not require more," the justices in the instances before them, found the prisoners had "received at least this amount of process: They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied." Id.
The Supreme Court was emphatic in asserting "[t]hat should have been the beginning and the end of the federal habeas courts' inquiry...." Swarthout, at *3. "It will not do to pronounce California's 'some evidence' rule to be 'a component' of the liberty interest...." Id. "No opinion of ours supports converting California's "some evidence" rule into a substantive federal requirement." Id. Thus, it appears there is no federal due process requirement for a "some evidence" review and it also appears that federal courts are precluded from review of the state court's application of its "some evidence" standard. Therefore, this claim should be dismissed.
As to claim 3, implicating Marsy's Law for his three-year parole denial, that claim should be dismissed in light of the class action, Gilman v. Fisher, CIV-S-05-0830 LKK GGH. The parameters of the Gilman class, as is made clear in the Order certifying the class, include petitioner. Order, filed on March 4, 2009, in Gilman v. Fisher, CIV-S-05-0830 LKK GGH.*fn5
The Gilman class is made up of:
California state prisoners who: "(i) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions." Id., p. 10.*fn6
What is at issue in the suit are: "the procedures used in determining suitability for parole: the factors considered, the explanations given, and the frequency of the hearings." Id., p. 8 [emphasis in original]. The "frequency of the hearings" is precisely what is at issue in the third claim of the instant petition.
Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this case.
IT IS HEREBY RECOMMENDED that claims 2 and 3 be dismissed from this petition and this matter proceed only as to claim 1.
If petitioner files objections, he shall also address if a certificate of appealability should issue and, if so, as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must ...