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. He challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at a parole consideration hearing held on October 18, 2007. He claims that the Board's decision finding him unsuitable for parole 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 1993 judgment of conviction entered against him in the Fresno County Superior Court following his conviction on charges of attempted murder with a handgun. Pet. at 1.*fn1 Pursuant to that conviction, he was sentenced to seven years to life in state prison. Id.
The parole consideration hearing at issue was held on October 18, 2007. Id. at 31. Petitioner appeared at and participated in the hearing. Id. at 33-85. Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for two years and the reasons for that decision. Id. at 86-93.
Petitioner challenged the Board's 2007 decision in a petition for a writ of habeas corpus filed in the Fresno County Superior Court. Answer, Ex. 1. The Superior Court denied that petition in a decision on the merits of petitioner's claims. Id., Ex. 2. Petitioner subsequently challenged the Board's 2007 decision in petitions for writ of habeas corpus filed in the California Court of Appeal and the California Supreme Court. Id., Exs. 3, 5. Those petitions were summarily denied. Id., Exs. 4, 6.
Petitioner claims that the Board's 2007 decision finding him unsuitable for parole violated his right to due process because it was not supported by "some evidence" that he posed a current danger to society if released. Pet. at 4. He argues that the Board improperly relied on the unchanging factor of his commitment offense to deny him a parole date. Id. at 5. Petitioner further claims that the appropriate standard of review of a state parole decision should be preponderance of the evidence and not the "some evidence" standard. Id. at 9-10.*fn2
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*fn3 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 2007 parole hearing, that he participated in the hearing, and that he was provided with the reasons for the Board's decision to deny parole. Pursuant to Swarthout, this is all that due process requires. ...