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Richard M. Phinney v. S. Salinas

June 22, 2012

RICHARD M. PHINNEY, PETITIONER,
v.
S. SALINAS, RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises a due process challenge to the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his parole consideration hearing held on April 15, 2009. He also argues that thirty years of changing parole law, culminating in the passage of Marsy's Law, violates the ex post facto clause of the U.S. Constitution. Upon careful consideration of the record and the applicable law, the undersigned will recommend that the petition be denied in its entirety.

PROCEDURAL BACKGROUND

In 1979, petitioner was convicted in the El Dorado County Superior Court of first degree murder. He is serving a state prison term of 25 years to life. (Dkt. No. 1 ("Ptn.") at 1.) At petitioner's parole consideration hearing on April 15, 2009, the Board found petitioner unsuitable for release and issued a five-year denial of parole. (Dkt. No. 1-1 at 138-146 (Board decision).)

Prior to the Board's 2009 denial at issue here, petitioner filed a habeas petition in the El Dorado Superior Court alleging that thirty years of changing parole law, culminating in the passage of Marsy's Law in 2008, violated the ex post facto clause. On January 27, 2009, the superior court denied the petition because petitioner had not alleged any harm to himself as a result of these legislative changes. (Dkt. No. 9-2 at 1-3.)

In June 2009, petitioner filed a second habeas petition in the El Dorado County Superior Court, challenging the Board's April 2009 decision on due process and ex post facto grounds. On August 4, 2009, the superior court denied the petition in a reasoned decision. Specifically, the court denied the due process claim on the merits, and denied the ex post facto claims as successive because petitioner had raised those claims in his earlier petition, dismissed on January 27, 2009. (Dkt. No. 9-1 at 3-7.)

In August 2009, petitioner filed a habeas petition in the California Court of Appeal, Third Appellate District, claiming in relevant part that the Board's 2009 denial of parole violated his due process rights, and that the superior court erred in dismissing his ex post facto claims. The court of appeal summarily denied this petition on August 27, 2009. (Dkt. No. 9-5.) Petitioner next filed a petition raising the same claims in the California Supreme Court, which summarily denied the petition on February 24, 2010. (Dkt. Nos. 9-6, 9-7, 9-8, 9-9.)

On March 10, 2010, petitioner commenced this action by filing the instant petition. Respondent filed an answer and petitioner filed a traverse.

ANALYSIS

I. Standards of Review

Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). 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); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 ...


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