The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1
In 1993, petitioner was convicted of second degree murder
with a five-year enhancement for a prior felony conviction and was
sentenced to a total term of twenty years to life with the possibility
of parole. Petitioner challenges the 2011 decision by the California
Board of Parole Hearings (BPH) finding him unsuitable for parole on
two grounds: 1) that his Fifth and Fourteenth Amendment due process
rights were violated by the BPH's decision to delay setting a parole
release date because it was not predicated on relevant, reliable
evidence that petitioner remains a danger to society, was arbitrary
and the state court decision upholding it was an unreasonable application of state law;
and 2) the BPH application of Proposition 9, Marsy's Law, to
petitioner violated the ex post facto clause as applied to his
circumstances. See Petition.
On January 24, 2011, the United States Supreme Court in a per curiam decision found that the Ninth Circuit erred in commanding a federal review of the state's application of state law in applying the "some evidence" standard in the parole eligibility habeas context. Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 861 (2011). Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed that "'federal habeas corpus relief does not lie for errors of state law.'" Id. While the high court found that the Ninth Circuit's holding that California law does create a liberty interest in parole was "a reasonable application of our cases" (while explicitly not reviewing that holding),*fn2 the Supreme Court stated:
When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication-and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal.
Swarthout v. Cooke, at 862.
Citing Greenholtz,*fn3 the Supreme Court noted it had found under another state's similar parole statute that a prisoner had "received adequate process" when "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout v. Cooke, at 862. Noting their holding therein that "[t]he Constitution  does not require more," the justices in the instances before them, found the prisoners had "received at least this amount of process: They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied." Id.
The Supreme Court was emphatic in asserting "[t]hat should have been the beginning and the end of the federal habeas courts' inquiry...." Swarthout v. Cooke, at 862. "It will not do to pronounce California's 'some evidence' rule to be 'a component' of the liberty interest...." Id., at 863. "No opinion of ours supports converting California's "some evidence" rule into a substantive federal requirement." Id., at 862. Thus, it appears there is no federal due process requirement for a "some evidence" review and it also appears that federal courts are precluded from review of the state court's application of its "some evidence" standard. Although petitioner argues mightily for entitlement to substantive due process in this court with regard to state parole procedures, Swarthout v. Cooke could not be more emphatic. Petitioner does not raise a claim implicating procedural due process at the hearing. He does not contend that he was deprived of an opportunity to be heard or that he was not provided a statement of reasons for the parole denial.*fn4 This claim should be dismissed.
As to ground 2, petitioner's claim regarding the application of Proposition 9 resulting in an increased deferral period before his next parole suitability hearing is not a challenge to the parole denial decision itself and is, therefore, not cognizable under 28 U.S.C. § 2254. Although petitioner's ultimate goal is a speedier release from incarceration, the immediate relief sought on this ground vis-a-vis Marsy's Law is a speedier opportunity to attempt to convince BPH once again that he should be released; that is too attenuated from any past finding by the BPH of parole suitability for such a claim to sound in habeas. Rather this claim is a challenge to the constitutionality of state procedures denying parole eligibility or suitability and could properly proceed pursuant to an action under 42 U.S.C. § 1983. Skinner v. Switzer, ___U.S.___, 2011 WL 767703 at *8 (Mar. 7, 2011) ("Success in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction"); id,, citing Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S. Ct. 1242, 1248 (2005) ("Success...does not mean immediate release from confinement or a shorter stay in prison" but "at most [a] new eligibility review" or "a new parole hearing...."). Moreover, the High Court in Wilkinson expressly noted that a claim seeking "an injunction barring future unconstitutional procedures did not fall within habeas' exclusive domain." Id. at 81, 125 S.Ct. at 1247 [emphasis in original.] Even earlier, the Ninth Circuit had found that the challenge of inmates to a sex offender treatment program as a violation of, inter alia, the ex post facto clause and their due process rights was appropriate under § 1983 because victory could only result in "a ticket to get in the door of the parole board....," and did not undermine the validity of convictions or continued confinement. Neal v. Shimoda,131 F.3d 818, 824 (9th Cir. 1997).
Moreover, currently, there is a class action proceeding, Gilman v. Brown, CIV-S-05-0830 LKK GGH,*fn5 wherein "the procedures used in determining suitability for parole: the factors considered, the explanations given, and the frequency of the hearings" are what is at issue. Id., p. 8 [emphasis in original]. The "frequency of the hearings" is precisely what is at issue in the instant claim.
The Gilman class is made up of:
California state prisoners who: "(I) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions."
Petitioner -- convicted of second degree murder, sentenced to a term of 20 years to life with the possibility of parole and challenging a second subsequent parole consideration hearing denial -- fits squarely within the parameters of the Gilman class.*fn7 See Petition. Although defendants have very recently been granted judgment on the pleadings as to several of the claims in Gilman, the ex post facto challenge by class members to the application of Marsy's Law is proceeding.*fn8
Finally, the undersigned can think of no reason why the parole eligibility hearing frequency issue should proceed in habeas using the highly deferential AEDPA standard, while the civil rights claim involving this ...