FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges former California Governor Arnold Schwarzenegger's July 17, 2009 reversal of the decision by the California Board of Parole Hearings ("Board") finding petitioner suitable for parole. He claims that the Governor's action violated his right to due process.
As discussed below, the United States Supreme Court has held that the only inquiry on federal habeas review of a denial of parole is whether the petitioner has received "fair procedures" for vindication of the liberty interest in parole given by the state. Swarthout v. Cooke, 562 U.S. ___, No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). In the context of a California parole suitability hearing, a petitioner receives adequate process when he/she is allowed an opportunity to be heard and a statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners 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"); see also Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 16 (1979). For the reasons that follow, applying this standard here requires that the petition for writ of habeas corpus be denied.
Petitioner is confined pursuant to a 1984 judgment of conviction entered against him in the Riverside Superior Court following his conviction on charges of first degree murder and two counts of robbery. Pet. at 1.*fn1 Pursuant to that conviction, petitioner was sentenced to thirty years to life in state prison. Id.
On February 19, 2009, the Board conducted a hearing and found petitioner suitable for release from prison. Dckt. 1-1, at 79-94. Petitioner appeared at and participated in that hearing. Id. at 7-78. Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to grant petitioner parole and the reasons for that decision. Id. at 79-94. On July 17, 2009, former Governor Schwarzenegger reversed the Board's decision. Id. at 97-101. Petitioner received a letter from the Governor's Office which contained a statement of the reasons for the Governor's decision. Id.
Petitioner challenged the Governor's decision in a petition for writ of habeas corpus filed in the Riverside County Superior Court on October 29, 2009. Answer, Ex. 1. That petition was denied on November 12, 2009, on the grounds that the petition failed to state a prima facie case for relief and made assertions that were contrary to California law. Id., Ex. 2. Subsequently, petitioner challenged the Governor's decision in petitions for writ of habeas corpus filed in the California Court of Appeal and California Supreme Court. Id., Exs. 3, 5. Those petitions were summarily denied. Id., Exs. 4, 6.
Petitioner claims that the Governor's reversal of the Board's favorable suitability finding violated due process because there was not "some evidence" he posed a current danger to society if released from prison. Pet. at 4, 7-46.
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 litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the due process clause 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).
A protected liberty interest may arise from either the due process clause of the United States Constitution "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz, 442 U.S. at 7 (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."); see also Hayward v. Marshall, 603 F.3d 546, 561 (9th Cir. 2010) (en banc). However, "a state's statutory scheme, if it uses mandatory language, '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." Greenholtz, 442 U.S. at 12). See also Allen, 482 U.S. at 376-78;
California's parole scheme*fn2 gives rise to a liberty interest in parole protected by the federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). However, the United States Supreme Court has held that correct application of California's "some evidence" standard is not required by the federal due process clause. Swarthout, 2011 WL 197627, at *2. Rather, this court's review is limited to the narrow question whether the petitioner has received adequate process for seeking parole.
Id. at *3 ("Because the only federal right at issue is procedural, the relevant inquiry is what process [petitioner] received, not whether the state court decided the case correctly."). Adequate process is provided when the inmate is allowed a meaningful opportunity to be heard and a statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners 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"); see also Greenholtz, 442 U.S. at 16.
Here, the record reflects that petitioner was present at the 2009 parole suitability hearing at which he was found suitable for parole. He participated in that hearing and was provided with a statement of the reasons why parole was granted. He was also provided with a statement of the reasons why parole was eventually denied by former Governor Schwarzenegger. Pursuant to Swarthout, this is ...