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Gregory Dwayne Reed v. Gary Swarthout

June 14, 2012

GREGORY DWAYNE REED, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order filed December 9, 2011, petitioner's due process claims were dismissed with prejudice, and the parties were directed to brief petitioner's remaining ex post facto claim. For the reasons stated below, the court recommends that petitioner's ex post facto claim be denied.

Petitioner challenges the state court's denial of habeas relief in connection with the 2009 decision by the Governor to reverse the Board of Parole Hearings ("Board") finding that petitioner was suitable for parole

II. Procedural Background

On August 4, 2010, the Alameda County Superior Court issued the last reasoned state court decision denying the petition for writ of habeas corpus. Although the court did not expressly address petitioner's ex post facto claim, the court cited In re Rosenkrantz, 29 Cal.4th 619, 677 (Cal. 2002), in analyzing petitioner's "some evidence" due process claim. (Dkt. No. 1 at 223-26.)

On September 2, 2010, the California Court of Appeal, First Appellate District, issued a summary denial of the petition. (Dkt. No. 1 at 227.)

On November 23, 2010, the California Supreme Court, sitting en banc, denied the petition for review without comment. (Dkt. No. 1 at 228.)

III. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

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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