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Arthur Mahone v. Gary Swarthout

August 24, 2011

ARTHUR MAHONE, PETITIONER,
v.
GARY SWARTHOUT, ET AL., RESPONDENT.



FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that his federal constitutional right to due process was violated by a 2009 decision of the California Board of Parole Hearings ("the Board") to deny him a parole date and that the Board violated the ex post facto clause by retroactively applying California's Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," which amended Cal. Pen. Code § 3041.5(b)(3) in 2008 after petitioner had committed his commitment offense.

FACTUAL AND PROCEDURAL BACKGROUND

In 1979, petitioner was convicted of second-degree murder and was sentenced to a term of fifteen years to life with the possibility of parole. See Pet., Ex. A. On October 29, 2009, petitioner appeared before the Board for a parole consideration hearing. See Ans., Ex. N. Petitioner appeared at and participated in the hearing. See id. at 1. Following deliberations held at the conclusion of the hearing, the Board announced their decision to deny petitioner parole and the reasons for that decision. Id. at 77.

On March 8, 2010, petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court. See Pet., Ex. A. On April 26, 2010, the petition was denied. Id.

On May 27, 2010, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District. See Pet., Ex. B. On July 21, 2010, the petition was denied. Id.

On August 16, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. Pet., Ex. C. On October 13, 2010, the petition was summarily denied. Id.

This action commenced on December 7, 2010. Respondent filed an answer on February 18, 2011. Petitioner filed a traverse on March 8, 2011.

ANALYSIS

I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits

in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...


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