The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On May 25, 2011, Petitioner filed the instant petition for writ of habeas corpus. He is currently incarcerated at the Avenal State Prison serving a sentence of fifteen years to life for his 1987 convictions of first degree murder with use of firearm, robbery and burglary. (See Petition at 2.) Petitioner contends that he has a liberty interest in his minimum eligible parole date and the retroactive application of Marsy's law violates the Ex Post Facto Clause.
A. Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
B. Failure to State a Cognizable Claim
To the extent Petitioner takes issue with the policies, practices and procedures of the Board as applied in its decision to deny him parole, this claim is foreclosed by the Supreme Court's decision in Swarthout v. Cooke, ___ U.S.___, 131 S.Ct. 859, 2011 WL 197627 (2011). In Swarthout, the Supreme Court held that the federal habeas court's inquiry into whether a prisoner who has been denied parole received due process is limited to determining whether the prisoner "was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied." Id., citing, Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). Petitioner does not contend he was denied these procedural due process guarantees. Rather, it appears Petitioner contends he has a liberty interest under the Due Process Clause in the application of his good and work time credits used to establish his minimum eligibility release. Petitioner is mistaken. A life prisoner's "Minimum Eligible Parole Date," (MEPD) is the "earliest date on which an Indeterminate Sentence Law or life prisoner may be legally released on parole." See Cal. Code Regs., tit. 15, § 3000; see also Cal. Code Regs., tit. 15, § 2000(b)(67). However, the actual length a prisoner must serve prior to release is determined by the Board of Parole. The prisoner's MEPD determines the timing of the prisoner's initial suitability hearing-one year prior to the MEPD. See e.g. Alley v. Carey, 2010 WL 4386827 1 6 (9th Cir. Nov. 5, 2010) (unpublished) (good time credit affects minimum eligible parole date).
California Penal Code section 190(a) mandates the CDCR apply any good behavior credits against the minimum term for purposes of establishing the MEPD. Those credits need not be reapplied to the actual term it eventually sets if, and when, the prisoner is determined eligible for parole. In re Dayan, 231 Cal.App.3d 184, 188 (1991); see also Cal. Code Regs., tit. 15, § 2400 ("The department's decisions [regarding credit] do not affect the Board's decision concerning post-conviction credit pursuant to these rules."). It is theoretically possible that if a prisoner is determined eligible for parole at the earliest possible time, credits may be of use in actually reducing the amount of time a prisoner served prior to the initial parole suitability hearing being set. See People v. Rowland, 134 Cal.App.3d 1, 13-14 (1982). However, the determination of Petitioner's actual release is dependent upon the Board of Parole finding him suitable for release, irrespective of the amount of time served. Cal. Pen. Code § 3041(b); Cal. Code Regs., tit. 15, § 2281(a).
Therefore, the credits that Petitioner is allowed to earn by statute as a life prisoner do not have a direct impact upon the amount of time Petitioner must actually serve unless and until the Board of Parole determines he is suitable for release. Petitioner will receive parole consideration hearing at intervals set by the Board and the credits do not direct impact the duration of Petitioner's sentence. Cal. Pen. Code §§ 3041, 3041.5.
Petitioner's second claim for relief, that the Board violated the Ex Post Facto Clause by invoking Marsy's Law, is without merit. On November 4, 2008, California voters passed Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," which, inter alia, altered the frequency of parole hearings for prisoners not found suitable for parole. Prior to the passage of Proposition 9, in the event a prisoner was determined unsuitable for parole, a subsequent parole hearing would be held annually thereafter. Cal Penal Code § 3041.5(b)(2) (2008). If the parole board determined it was not reasonable to expect parole would be granted within the next year, it could defer rehearing for two years. Id. If the prisoner was convicted of murder and it was not reasonable to expect he/she would be granted parole within the year, the board could select a rehearing term of up to five years. Id. Proposition 9 changed the frequency of subsequent parole hearings as follows:
The board shall schedule the next hearing, after considering the views and interests of the victim, as follows:
(A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a ...