The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding in forma pauperis and without counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, based on challenges to a June 9, 2009 decision of the California Board of Parole Hearings ("Board"), denying petitioner parole. The operative petition is the First Amended Petition ("petition"), filed September 22, 2011. (Dkt. No. 10.) Petitioner contends that the Board's decision violated his rights under the Fourteenth Amendment's Due Process Clause, and the federal and state ex post facto clauses. This action is before the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B), Local General Order No. 262, and Local Rule 302(c).
Pending before the court are respondent's motions to dismiss the petition (Dkt. Nos. 18, 21)*fn1 pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Rule 4"), on the ground that the petition fails to state a cognizable claim for relief. Rule 4 authorizes the summary dismissal of a habeas petition "[i]f it plainly appears from the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Id., Rule 4; see O'Bremski v.Maass, 915 F.2d 418, 420 (9th Cir. 1990) ("[R]ule 4 . . . 'explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated'"), quoting Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983).
Petitioner timely filed oppositions to respondent's motions to dismiss (Dkt. Nos. 19, 22); respondent did not file a reply. For the reasons that follow, this court recommends that respondent's motions to dismiss be granted.
Petitioner is incarcerated at San Quentin State Prison, serving a life sentence with the possibility of parole, that commenced in 1997. The subject parole hearing was convened on June 9, 2009, pursuant to which the Board denied petitioner parole, and deferred for five years his subsequent parole hearing. (Dkt. No. 10 at 51.)*fn2 The Marin County Superior Court denied his petition for a writ of habeas corpus in a written decision filed on April 26, 2010 (Case No. SC168450A). (Dkt. No. 10 at 34-6.) The California Court of Appeal summary denied the petition on September 23, 2010 (Case No. SC168450A). (Id. at 31.) Thereafter, the California Supreme Court summarily denied the petition on April 27, 2011 (Case No. S187334). (Id. at 30.)
Petitioner claims that the Board's decision denying him parole violated his Fourteenth Amendment rights to due process, and that the deferral of his next parole hearing for a period of five years violates his rights under the state and federal ex post facto clauses.
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause, and then show that the procedures used to effect the deprivation were not constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).
A protected liberty interest may arise from the Due Process Clause of the United States Constitution either "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). However, "a state's statutory scheme, if it uses mandatory language, 'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." Greenholtz, 442 U.S. at 12; seealso Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a state's use of mandatory language ("shall") creates a presumption that parole release will be granted when the designated findings are made.).
California's parole statutes give rise to a liberty interest in parole for which "the Due Process Clause requires fair procedures for its vindication." Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal. 4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that "[n]o opinion of [theirs] supports converting California's 'some evidence' rule into a substantive federal requirement." Swarthout, 131 S. Ct. at 862-63. In other words, the Court specifically rejected the notion that there can be a valid claim under the Fourteenth Amendment for insufficiency of evidence presented at a parole proceeding. Id. Rather, the protection afforded by the federal due process clause to California parole decisions consists solely of the "minimal" procedural requirements set forth in Greenholtz, specifically "an opportunity to be heard and . . . a statement of the reasons why parole was denied." Id. at 862-63. These considerations constitute "the beginning and the end of the federal habeas court's inquiry into whether [a petitioner] received due process" before a parole board. Id. at 862.
Petitioner contends that the Board "failed to provide any evidence that if [petitioner] was released that he would be a threat to public safety. . . . The board provided no nexus of how if petitioner were released [he] posed a current threat of dan[g]erousness." (Dkt. No. 10 at 4; see also id. at 18-28 (Board's decision failed to meet "some evidence" standard articulated in In re Lawrence, supra, 44 Cal. 4th 1181).) Petitioner asserts that the Board instead improperly relied on his commitment offense, "hypothetical scenario's [sic]," and "personal beliefs formulated from an old psychological (psych) report that also provided no evidence of how the evaluator arrived to his conclusion." (Id. at 20.)
Petitioner's arguments fail to demonstrate a federal due process violation. As previously noted, this court's review of petitioner's federal due process claim is limited to the very narrow question whether petitioner received adequate process at the parole hearing. "Because the only federal right at issue is procedural, the relevant inquiry is what process [petitioner] received, not whether the state court [and Board] decided the case correctly." Swarthout, 131 S. Ct. at 863. Therefore, this court is without ...