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Michael Dubov v. Gary Swarthout

May 4, 2011


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


I. Introduction

Petitioner is a state prisoner proceeding with counsel, with an amended petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.*fn1 Petitioner claims that his federal constitutional right to due process was violated by a 2009 decision of the California Board of Parole Hearings (hereafter "the Board") denying petitioner parole, and that the Board's application of California's "Proposition 9," to delay for seven years his next parole hearing, violates the federal Ex Post Facto Clause. Respondent has filed a motion to dismiss the amended petition, pursuant to Rule 4, Rules Governing § 2254 Cases in the United States District Courts. Petitioner has filed an opposition. For the reasons that follow, this court recommends that the amended petition be dismissed.

II. Background

Petitioner is incarcerated at California State Prison-Solano, in Vacaville,

California, pursuant to the authority of the California Department of Corrections and Rehabilitation. Petitioner is serving a sentence of twenty-five-years-to-life, based on a 1996 murder conviction. Petitioner contends that the Board's July 8, 2009 decision violated his Fourteenth Amendment right to substantive due process, and that the seven-year deferral of a subsequent parole hearing creates a substantial risk of increased punishment in violation of state and federal ex post facto laws.

III. Discussion A. Due Process

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 Dept. 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 and Correctional Complex, 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).

The Supreme Court recently affirmed that California's parole statutes give rise to a liberty interest in parole protected by the federal Due Process Clause. Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. In re Lawrence (2008) 44 Cal. 4th 1181, 1205-06, 1210; In re Rosenkrantz (2009) 29 Cal. 4th 616, 651-53. However, in Swarthout, the Supreme Court held that "[n]o opinion of [theirs] supports converting California's 'some evidence' rule into a substantive federal requirement." Swarthout, 131 S. Ct. at 862. 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, or relied upon, at a parole proceeding. Id. at 862-63. Rather, the protection afforded by the federal Due Process Clause to California parole decisions consists solely of the "minimum" procedural requirements set forth in Greenholtz, specifically "an opportunity to be heard and . . . a statement of the reasons why parole was denied." Id. at 862.

The Supreme Court has stated that "the beginning and the end of the federal habeas courts' inquiry" is whether petitioner received "the minimum procedures adequate for due-process protection." Swarthout, 131 S. Ct. at 862. Petitioner's reliance on the Court's decisions prior to Swarthout is inapposite.

Both petitioner and respondent have submitted copies of the transcript of the subject parole hearing. (Dkt. No. 14, Exh. B; Dkt. No. 11, Exh. 2 ("Hearing Decision").) The record reflects that petitioner was present, with counsel, at the July 8, 2009 parole hearing, that petitioner was afforded access to his record in advance, that petitioner participated in the hearing, and that he was provided with the reasons for the Board's decision to deny parole. According to the most recent pronouncement of the United States Supreme Court, the federal Due Process Clause requires no more. Petitioner's several contentions premised on the substance of the Board's parole decision, challenging the factors and sufficiency of the evidence underlying that decision, are therefore without merit.

B. Ex Post Facto Clause

Petitioner also 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 seven years his next parole hearing (Hearing Decision, at 98), violated the Ex Post Facto Clause of the United States Constitution.*fn2 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 ยง 3041.5(b)(2) (2008). At the July 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. Penal Code ...

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