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Victor Lopez v. S.M. Salinas

February 22, 2011

VICTOR LOPEZ, PETITIONER,
v.
S.M. SALINAS, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS*fn1

I. Introduction

Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, based on claims that his federal constitutional rights were violated by a 2009 decision of the California Board of Parole Hearings.

Pending before the court is respondent's motion to dismiss, pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. "Rule 4 of the Rules Governing Section 2254 in the United States District Courts explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated." O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (citations and internal quotation marks omitted). Given the clear merits of the motion, and the court's independent authority to dismiss a petition that fails to demonstrate entitlement to relief,*fn2 the court issues these findings and recommendation that this action be dismissed before awaiting petitioner's response to the pending motion.

II. Background

Petitioner is presently incarcerated at Deuel Vocational Institution, serving a life sentence that commenced in 1993. Petitioner challenges the December 11, 2009 decision of the California Board of Parole Hearings ("Board") denying petitioner parole, and deferring for a period of three years petitioner's next parole hearing. Petitioner claims that the Board's decision is not supported by sufficient evidence, and that the deferral of his next parole hearing for a period three years violated the Ex Post Facto Clause. Petitioner has exhausted his state court remedies in pursuing his claims under the Fourteenth Amendment and Ex Post Facto Clause.*fn3 Following the Supreme Court's recent decision in Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011), respondent, on February 11, 2011, filed the instant motion to dismiss.

III. Due Process

The Due Process Clause of the Fourteenth Amendment prohibits state action thatdeprives 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 the Due Process Clause of the United States Constitution either "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). 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 v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). 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; seealso Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a state's use of mandatory language ("shall") creates a presumption that parole release will be granted when the designated findings are made.).

California's parole statutes give rise to a liberty interest in parole protected by the federal due process clause. Swarthout v. Cooke, supra, 2011 WL 197627, at *2. In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that "[n]o opinion of [theirs] supports converting California's 'some evidence' rule into a substantive federal requirement." Swarthout, 2011 WL 197627, at *3. In other words, the Court specifically rejected the notion that there can be a valid claim under the Fourteenth Amendment for insufficiency of evidence presented at a parole proceeding. Id. at *3. Rather, the protection afforded by the federal due process clause to California parole decisions consists solely of the "minimal" procedural requirements set forth in Greenholtz, specifically "an opportunity to be heard and . . . a statement of the reasons why parole was denied." Swarthout, at *2-3.

Here, the record reflects that petitioner was present, with counsel, at the December 11, 2009 parole hearing, that petitioner was afforded access to his record in advance, that he participated in the hearing, and that he was provided with the reasons for the Board's decision to deny parole. (Dkt. No. 1 at 39-166.) According to the United States Supreme Court, the federal due process clause requires no more.

IV. Ex Post Facto Clause

Petitioner contends that the Board's application of the recently enacted "Marsy's

Law" (adopted by the voters pursuant to Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law") to delay for three years his next parole hearing, violated the Ex Post Facto Clause of the United States Constitution. Under the statute as it existed prior to the enactment of "Marsy's Law," indeterminately-sentenced inmates, like petitioner, were denied parole for one year unless the Board found, with stated reasons, that it was unreasonable to expect that parole could be granted the following year, in which case the subsequent hearing could be extended up to five years. Cal. Penal Code § 3041.5(b)(2) (2008). (Cf. Dkt. No. 167-179 (excerpts of petitioner's November 20, 2001 parole hearing, which deferred the next parole hearing for a period of only one year).) At the December 2009 parole hearing, petitioner was subject to the terms of the amended statute, which authorizes denial of a subsequent parole hearing for a period up to fifteen years. Cal. Pen. Code, § 3041.5(b)(3) (2010). The shortest ...


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