The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2009 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole.
On January 27, 2011, the undersigned vacated the briefing schedule in this case and instead ordered both parties to provide briefing regarding the recent United States Supreme Court decision that 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. ___, 131 S. Ct. 859, 861 (2011).*fn1
The parties have timely filed briefing. As grounds for his petition, petitioner claims that his rights to due process and equal protection were violated when he was denied parole without "some evidence" to demonstrate that he posed a current unreasonable risk to public safety. See Petition. He also claims he was subjected to cruel and unusual punishment and to a violation of the ex post facto clause when he was given a five-year denial. Id.
Respondent contends that petitioner's claims of an equal protection violation, cruel and unusual punishment and an ex post facto clause violation are conclusory, insufficiently supported and also not exhausted. Respondent's Supp. Briefing, pp. 2-3, citing, inter alia, Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) and Rule 2(c) of the Rules Governing § 2254 Petitions. As to the question of exhaustion,*fn2 the court's review of the petitioner's application to the state supreme court does reveal that claims of violations of the equal protection and ex post facto clauses were not therein raised, nor was a claim of cruel and unusual punishment. Respondent's Exhibit 1, pp. 1-19. However, while these claims may not be exhausted, the court elects to reach the claims and recommend they be denied on the merits. See 28 U.S.C. § 2254(b)(2).*fn3
Petitioner contends that he was denied a fair hearing and his right to equal protection when his hearing was postponed from December 2008, because his BPH-appointed attorney "'called in sick.'" Petition, p. 22. He claims he was denied a fair hearing when the hearing was postponed off the record and without his consent, denying him his right to proceed without counsel; he also claims that because the 2008 hearing was put off, a new 2009 psychological evaluation, which did not exist at the time of the 2008 hearing, was considered and was unreliable as it contained erroneous/false information which, along with other factual inaccuracies (such as the D.A.'s "mischaracterized version of the commitment offense"), was unfairly relied on by the BPH panel. Id. at 15-27; Petitioner's Supplemental Briefing, pp. 4-12. He claims that the BPH and the state courts have denied him his right to be heard on the issue of the factual inaccuracy and unreliability of the evidence relied on by the BPH at the hearing and have failed to address his claims. Petition, pp. 6-7; Petitioner's Supplemental Briefing, pp. 10-12. However, the basis of his claim of an equal protection violation appears to be that other inmates who had hearings in 2008 were permitted to proceed when scheduled and without counsel, if they were competent. Petition, p. 10.
In supplemental briefing, respondent correctly contends, an equal protection violation may be shown only if it can be demonstrated there was intentional discrimination based on one's membership in a protected class (Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003)), or that one has been intentionally treated differently from those who were similarly situated absent a rational basis for such different treatment (Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073 (2000). See Respondent's Supp. Briefing, p. 3. The court agrees with respondent that an administrative decision delaying a parole consideration hearing due to petitioner's counsel's illness does not implicate equal protection because petitioner does not thereby convincingly allege that inmates in the situation he was in are dissimilarly treated. Moreover, delaying a hearing in order to provide an opportunity for one's counsel to attend hardly appears irrational. Further, the BPH hearing transcript shows that both petitioner and his counsel were permitted the opportunity to be heard as to the objections petitioner had to, inter alia, the 2009 psychological evaluation. See below. Petitioner's claim of an equal protection violation is insufficiently supported and should be denied.
Moreover, petitioner's claims of unfairness at the hearing do not state a claim. As was stated in the show cause order, under Swarthout, it appears not only that there is no federal due process requirement for a "some evidence" review, it also appears that federal courts are precluded from review of the state court's application of its "some evidence" standard. 131 S. Ct. at 862.
The court's review of the BPH hearing transcript confirms that petitioner, despite his protestations otherwise, received due process inasmuch as he was "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout, at 862; Petition exhibits, docket # 5, pp. 31-96.*fn4 Although the court is foreclosed from going beyond that determination and may not weigh the sufficiency of the evidence to support the parole denial, the undersigned observes that petitioner raised his objections to the evidence considered by the BPH panel and presented his own assessments himself or through his counsel. See, e.g., docket # 5, pp. 54-55, 66-71, 79-85.
As a separate ground for denial of petitioner's ex post facto claim, it appears that this is a challenge to the application of Proposition 9*fn5 to him, resulting in an increased (five-year) deferral period before his next parole suitability hearing, a claim that is not a challenge to the parole denial decision itself and is, therefore, not cognizable under 28 U.S.C. § 2254. Although petitioner's ultimate goal is a speedier release from incarceration, the immediate relief sought on this ground vis-a-vis Marsy's Law is a speedier opportunity to attempt to convince BPH once again that he should be released; that is too attenuated from any past finding by the BPH of parole suitability for such a claim to sound in habeas. Rather this claim is a challenge to the constitutionality of state procedures denying parole eligibility or suitability and could properly proceed pursuant to an action under 42 U.S.C. § 1983. Skinner v. Switzer, ___U.S.___, 2011 WL 767703 at *8 (Mar. 7, 2011) ("Success in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction"); id,, citing Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S. Ct. 1242, 1248 (2005) ("Success...does not mean immediate release from confinement or a shorter stay in prison" but "at most [a] new eligibility review" or "a new parole hearing...."). Moreover, the High Court in Wilkinson expressly noted that a claim seeking "an injunction barring future unconstitutional procedures did not fall within habeas' exclusive domain." Id. at 81, 125 S.Ct. at 1247 [emphasis in original.] Even earlier, the Ninth Circuit had found that the challenge of inmates to a sex offender treatment program as a violation of, inter alia, the ex post facto clause and their due process rights was appropriate under § 1983 because victory could only result in "a ticket to get in the door of the parole board....," and did not undermine the validity of convictions or continued confinement. Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997).
Moreover, currently, there is a class action proceeding, Gilman v. Fisher, CIV-S-05-0830 LKK GGH,*fn6 wherein "the procedures used in determining suitability for parole: the factors considered, the explanations given, and the frequency of the hearings" are what is at issue. Id., p. 8 [emphasis in original]. The "frequency of the hearings" is precisely what is at issue in the instant claim.
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.*fn7
Plaintiff, sentenced to a term of seven years to life for first degree felony murder, burglary and robbery, fits squarely within the parameters of the Gilman class.*fn8 Petition, p. 1;BPH transcript, docket # 5, p. 33. *fn9 For ...