FINDINGS & RECOMMENDATIONS
Petitioner is a former state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges former California Governor Gray Davis's March 10, 2003 reversal of the October 11, 2002 decision by the California Board of Parole Hearings (hereinafter "Board") finding petitioner suitable for parole. Petitioner claims that the Governor's action reversing the grant of parole violated his federal constitutional right to due process. 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.*fn1
Petitioner is confined pursuant to a 1988 judgment of conviction entered against him in the Orange County Superior Court following his conviction on a charge of second degree murder. (Doc. No. 1-1 at 21.) Pursuant to that conviction, petitioner was sentenced to fifteen years-to-life in state prison. (Id.)
On October 11, 2002, the Board conducted a parole suitability hearing to determine whether petitioner should be granted a parole date. (Id. at 55.) Petitioner appeared at and participated in this hearing. (Id. at 57, et seq.) At the conclusion of the hearing, the Board panel announced their decision to grant parole to petitioner as well as the reasons for that decision. (Doc. No. 1-2 at 53-59.) However, on March 10, 2003, the Governor reversed the Board's decision. (Id. at 65-67.)
Petitioner challenged the Governor's reversal of the grant of parole in a petition for writ of habeas corpus filed in the Orange County Superior Court, which was denied in a reasoned decision on the merits of petitioner's claims. (Resp't's Lod. Doc. 5.) Petitioner subsequently filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District. (Resp't's Lod. Doc. 6.) That petition was summarily denied by order dated January 6, 2005. (Resp't's Lod. Doc. 7.) Petitioner then filed a petition for review in the California Supreme Court, which was summarily denied by order dated March 30, 2005. (Resp't's Lod. Docs. 8, 9.)
Petitioner filed his federal habeas petition in the United States District Court for the Central District of California on April 19, 2005. The action was transferred to this court on August 12, 2005. Respondent filed an answer on August 22, 2005, and petitioner filed a traverse on October 5, 2005. The action was stayed by order of this court dated June 24, 2009, pending final disposition of Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc).*fn2 The en banc decision in Hayward was issued by the Ninth Circuit Court of Appeals on April 22, 2010. The stay in this action was lifted on July 9, 2010 and the case was allowed to proceed.
In the petition pending before this court, petitioner claims that the Governor's decision reversing the Board's favorable parole suitability finding deprived him of his liberty without due process of law for several reasons. First, he argues that the grounds asserted by then Governor Davis to deny him a parole date are false, not supported by the evidence, irrelevant to the parole determination process, or purely speculative. (Doc. 1-1, at 38, 42.) Petitioner also challenges the Governor's reliance on prison misconduct that did not result in a disciplinary citation to find him unsuitable for parole. (Id. at 42.) Petitioner also denies that his crime was "heinous," as found by the former Governor. (Id. at 43.) He argues that it was actually the opposite: "a reckless, unpremeditated act committed while intoxicated." (Id.) Petitioner further argues that the record does not support the Governor's finding that he had an "unstable social history." (Id. at 44.) Petitioner notes that there is no evidence he had "unstable or tumultuous relationships with others." (Id.) He argues that his previous arrests and substance abuse history have nothing to do with whether he had a stable social history, and are therefore irrelevant to this factor indicating unsuitability of release on parole. (Id.)
Petitioner also challenges the Governor's conclusion that it was "too soon to tell" whether petitioner's gains in the penal setting could be maintained after his release. (Id. at 45.) Petitioner notes that the psychologist who examined him prior to his 2002 parole hearing opined that he posed a "negligible danger to others if released." (Id.) Petitioner also challenges the Governor's reliance on the fact that a Deputy District Attorney attended petitioner's parole hearing to oppose his parole, and that the Police Department also opposed parole at petitioner's previous suitability hearing. (Id.) Petitioner argues that these facts do not have any bearing on whether he would pose a danger to society if released. (Id.)
Finally, petitioner argues that: (1) the Board's repeated use of his offense of commitment to find him unsuitable for parole, especially where, as here, the crime was not particularly egregious, violates due process and essentially transforms his sentence into one of life without the possibility of parole; (2) the mere recitation of the commitment offense and its circumstances, without articulating a nexus between those factors and petitioner's current dangerousness, is violative of due process because it is "arbitrary in the extreme;" (3) the Governor's decision violated due process because it was not based on the Governor's "individualized consideration" of the facts of petitioner's case but was simply the same boilerplate denial issued in all second degree murder cases; and (4) pursuant to the decision in Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003), the Governor's use of the unchanging factor of petitioner's crime of conviction to deny him a parole date violated his right to due process. (Id. at 46-50.) In essence, through each of these arguments petitioner is claiming that the Governor's 2003 reversal of the Board's 2002 decision to grant 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.
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 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, ...