FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for one year at his third subsequent parole consideration hearing held on July 9, 2008. Petitioner claims that the Board's decision violated his federal constitutional right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
Petitioner is confined pursuant to a judgment of conviction entered in the San
Diego County Superior Court in 1992. (Pet. (Doc. No. 1) at 35.) At that time petitioner was found guilty of second degree murder, in violation of California Penal Code § 187(a), and of shooting into an inhabited dwelling, in violation of California Penal Code § 246. (Id.) On August 10, 1992, petitioner was sentenced to state prison for a term of fifteen years to life with the possibility of parole. (Id.)
Petitioner's third subsequent parole consideration hearing, which is placed at issue by the instant habeas petition, was held on July 9, 2008. (Id. at 37.)*fn1 Petitioner appeared at and participated in this hearing. (Id. at 40-100.) Following deliberations held at the conclusion of the hearing, the Board panel announced both their decision to deny petitioner parole for one years and the reasons for that decision. (Id. at 101-12.)
Thereafter, petitioner filed a petition for a writ of habeas corpus in the San Diego County Superior Court, claiming that the Board's failure to find him suitable for parole at his third subsequent suitability hearing violated his federal constitutional rights. (Answer, Ex. 1, Part 1 (Doc. No. 10-1.)) On March, 19, 2009, that court rejected petitioner's claims in a reasoned decision on the merits. (Answer, Ex. 2 (Doc. No. 10-3.))
Petitioner thereafter filed a habeas petition in the California Court of Appeal for the First Appellate District. (Answer, Ex. 3, Part 1 (Doc. No. 10-4.)) The California Court of Appeal summarily denied that petition on June 3, 2009. (Answer, Ex. 4 (Doc. No. 10-6.)) Petitioner next filed a habeas petition in the California Supreme Court. (Answer, Ex. 5 (Doc. No. 10-6.)) That petition was summarily denied on August 26, 2009. (Answer, Ex. 6 (Doc. No. 10-6.))
On September 22, 2009, petitioner filed the federal habeas petition now before this court. (Doc. No. 1.) Therein, petitioner contends that the Board's 2008 decision to deny him 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 from prison, as required under California law.
Respondent filed an answer on January 7, 2010. (Doc. No. 10.) Petitioner filed a traverse on January 19, 2010. (Doc. No. 13.)
On December 30, 2010, this court issued findings and recommendations which recommended that petitioner's habeas petition be granted. The undersigned found that there was no evidence before the Board at the July 9, 2008 hearing that petitioner posed a current danger to society if released from prison. (Doc. No. 14.) Accordingly, the court concluded that the decision of the state courts rejecting petitioner's due process claim was an unreasonable application of federal law. (Id.) However, on February 1, 2011, this court issued an order vacating the December 30, 2010 findings and recommendations in light of the United States Supreme Court's recent decision in Swarthout v. Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 861-62 (2011) and advised the parties that new findings and recommendations would issue in due course. (Doc. No. 18.)
II. Scope of Review Applicable to Due Process Challenges to the Denial of Parole 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). 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 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. See also Allen, 482 U.S. at 376-78.
California's parole scheme gives rise to a liberty interest in parole protected by the federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002); see also Swarthout, 131 S. Ct. at 861-62 (finding the Ninth Circuit's holding in this regard to be a reasonable application of Supreme Court authority); Pearson v. Muntz, ___F.3d___, 2011 WL 1238007, at *4 (9th Cir. Apr. 5, 2011) ("[Swarthout v.] Cooke did not disturb our precedent that California law creates a liberty interest in parole.") 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).
In Swarthout, the Supreme Court reviewed two cases in which California prisoners were denied parole - in one case by the Board, and in the other by the Governor after the Board had granted parole. Swarthout, 131 S. Ct. at 860-61. The Supreme Court noted that when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment requires fair procedures, "and federal courts will review the application of those constitutionally required procedures." Id. at 862. The Court concluded that in the parole context, however, "the procedures required are minimal" and that the "Constitution does not require more" than "an opportunity to be heard" and being "provided a statement of the reasons why parole was denied." Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit decisions that went beyond these minimal procedural requirements and "reviewed the state courts' decisions on the merits and concluded that they had unreasonably determined the facts in light of the evidence." Swarthout, ...