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. Therein, petitioner raises a due process challenge to former Governor Arnold Schwarzenegger's March 17, 2009 reversal of the October 24, 2008 decision by the California Board of Parole Hearings ("Board") to grant him parole. The matter has been fully briefed by the parties and is submitted for decision. 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 1986 judgment of conviction entered against him in the Los Angeles County Superior Court following his conviction on charges of second degree murder with use of a firearm. Pursuant to that conviction, petitioner was sentenced to seventeen years to life in state prison. (Doc. No. 1 at 1.)*fn1
On October 24, 2008, the Board conducted a parole suitability hearing to determine whether petitioner should be granted a parole date. (Doc. No. 3 at 21.) Petitioner appeared at and participated in this hearing. (Id. at 23, et seq.) At the conclusion of the hearing, the Board panel announced their decision to grant parole to petitioner and the reasons for that decision. (Id. at 119-30.) However, on March 17, 2009, the Governor reversed the Board's decision. (Id. at 187-89.)
Petitioner challenged the Governor's reversal in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court. (Answer, Ex. 1.) That petition was denied in a reasoned decision on August 17, 2009. (Answer, Ex. 2) Subsequently, petitioner challenged the Governor's decision to deny him parole in a petition for writ of habeas corpus filed in the California Court of Appeal for the Second Appellate District. (Answer, Ex. 3.) That petition was denied by that court with citations to In re Lawrence, 44 Cal.4th 1181 (2008), In re Shaputis, 44 Cal.4th 1241 (2008), In re Dannenberg, 34 Cal.4th 1061 (2005) and In re Rosenkrantz, 29 Cal.4th 616 (2002). (Answer, Ex. 4.) Petitioner then filed a petition for review, dated October 22, 2009, in the California Supreme Court. (Answer, Ex. 5.) After requesting and receiving an answer to the petition from the Governor, the California Supreme Court summarily denied that petition on December 23, 2009. (Answer, Ex. 6.)
Petitioner then filed his federal application for habeas relief in this court. Therein, petitioner contends that the Governor's 2009 reversal of the Board's decision to grant him parole violated his right to due process because the Governor's decision was not supported by "some evidence" that petitioner posed a current danger to society if released from prison, as required under California law. (Doc. No. 1 at 6-14; Doc. 2.)
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 v. Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 861-62 (2011) (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, 131 S. Ct. at 862. In particular, the Supreme Court rejected the application of the "some evidence" standard to parole decisions by the California courts as a component of the federal due process standard. Id. at 862-63.*fn2 See also Pearson, 2011 WL 1238007, at *4.
Petitioner seeks federal habeas relief on the grounds that the Governor's 2009 reversal of the Board's 2008 decision to grant him parole, and the findings upon which that reversal was based, were not supported by "some evidence" as required under California law.
However, under the Supreme Court's decision in Swarthout this court may not review whether California's "some evidence" standard was correctly applied in petitioner's case. 131 S. Ct. at 862-63; see also Miller v. Oregon Bd. of Parole and Post-Prison Supervision, ___F.3d___, 2011 WL 1533512, at *5 (9th Cir. Apr. 25, 2011) ("The Supreme Court held in [Swarthout v.] Cooke that in the context of parole eligibility decisions the due process right is procedural, and entitles a prisoner to nothing more than a fair hearing and a statement of reasons for a parole board's decision[.]"); Roberts v. Hartley, ___F.3d___, 2011 WL 1365811, at *3 (9th Cir. Apr. 12, 2011) (under the decision in Swarthout, California's parole scheme creates no substantive due process rights and any procedural due process requirement is met as long as the state provides an inmate seeking parole with an opportunity to be heard and a statement of the reasons why parole was denied); Pearson, 2011 WL 1238007, at *3 (9th Cir. Apr. 5, 2011) ("While the Court did not define the minimum process required by the Due Process Clause for denial parole under the California ...