FINDINGS & RECOMMENDATIONS
Petitioner is a former state prisoner proceeding with counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Therein, petitioner raises a due process challenge to former Governor Arnold Schwarzenegger's May 16, 2007 reversal of the January 9, 2007 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 1984 judgment of conviction entered against him in the San Diego 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 2.)*fn2
On January 9, 2007, the Board conducted a parole suitability hearing to determine whether petitioner should be granted a parole date. (Doc. No. 22, Ex. 1.) Petitioner appeared at and participated in this hearing. (Id. at 4, 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. (Id. at 86-102.) However, on May 16, 2007, the Governor reversed the Board's decision. (Doc. No. 22, Ex. 4 at 2-5.)
Petitioner challenged the Governor's reversal in a petition for writ of habeas corpus filed in the Solano County Superior Court. (Answer, Ex. 1.) The Solano County Superior Court transferred the petition to the San Diego County Superior Court by order dated October 19, 2007. (Answer, Ex. 2.) On November 10, 2008, the San Diego County Superior Court granted petitioner's petition in a reasoned decision on the merits of petitioner's claims. (Answer, Ex. 9.)
On November 20, 2008, respondent filed an appeal of the San Diego County Superior Court's order in the California Court of Appeal for the Fourth Appellate District. (Answer, Ex. 10.) By order dated June 11, 2009, the state appellate court reversed the San Diego County Superior Court's ruling in a decision on the merits. (Answer, Ex. 20.) Subsequently, petitioner filed a petition for review in the California Supreme Court. (Answer, Ex. 22.) That petition was summarily denied by order dated September 23, 2009. (Answer, Ex. 23.)
On March 18, 2010, petitioner filed his federal application for habeas relief in this court. Therein, petitioner contends that the Governor's 2007 reversal of the Board's 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. (Doc. No. 1 at 5-34.)
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, ...