ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee.
Petitioner challenges the decision of the California Board of Parole Hearings ("Board") to deny him parole at a parole consideration hearing held on November 12, 2009. See Dckt. No. 1 at 1-2.*fn1 He asserts the following grounds for relief: (1) the decision violated his right to due process because it was based on the circumstances of the commitment offense; (2) the Board violated his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it denied parole based on evidence that was never presented to a jury; (3) the Board violated the Establishment Clause by denying parole based on petitioner's failure to attend religious based programs; (4) the Board violated various state laws and petitioner's right to freedom under the First Amendment by trying to force him to admit that he was guilty of his commitment offense; and (5) the Board's decision to deny parole for five years pursuant to Marsy's Law violated the Ex Post Facto Clause. First Am. Pet., Dckt. No. 8 at 4-8. For the reasons explained below, the court finds that petitioner's claims lack merit and the petition must therefore be dismissed. See Rule 4, Rules Governing § 2254 Cases (requiring summary dismissal of habeas petition if, upon initial review by a judge, it plainly appears "that the petitioner is not entitled to relief in the district court").
Petitioner claims that the Board's decision that he was not suitable for parole violated his right to due process because the Board failed to consider the fact that he was only 17 at the time the commitment offense occurred. Dckt. No. 8 at 4. He further claims that he has not committed another violent offense since being arrested and that he has proved he is suitable for parole. Id. Petitioner is essentially claiming that the Board's decision denying parole violated his right to due process because it was not supported by sufficient evidence that petitioner poses a current danger to society if released from prison. Id. at 1-5.
Under California law, a prisoner is entitled to release 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 696, 651-53 (2002). According to the United States Supreme Court, however, federal habeas review of a parole denial is limited to the narrow question of whether a petitioner has received "fair procedures." Swarthout v. Cooke, 526 U.S. __ (2011), 131 S.Ct 859, 862 (2011). In other words, a federal court may only review whether a petitioner has received a meaningful opportunity to be heard and a statement of reasons why parole was denied. Id. (federal due process satisfied where petitioners 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"). Thus, this court may not review whether the Board correctly applied California's "some evidence" standard. Id. at 861.
Petitioner does not allege that he was not afforded constitutionally adequate process as defined in Swarthout--that is, that he was denied a meaningful opportunity to be heard or a statement of reasons why the Board denied him parole. Rather, it appears that petitioner was given the opportunity to be heard at his 2009 parole suitability hearing and received a statement of the reasons why parole was denied. See Dckt. No. 1-1 at 16-66 (reflecting both petitioner's participation in the hearing and the Board's reasons for denying parole). This is all that due process requires. Swarthout, 131 S.Ct. at 862-63. Accordingly, petitioner is not entitled to relief on this claim.
Petitioner claims that the Board violated his right to due process because its decision to deny parole was based on evidence that was never submitted to a jury. Dckt. No. 8 at 4; see also Dckt. No. 1 at 4.
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment requires any fact other than a prior conviction that "increases the penalty for a crime beyond the prescribed statutory maximum" to be "submitted to a jury and proved beyond a reasonable doubt." The relevant statutory maximum "is not the maximum sentence a judge may impose after finding additional fact, but the maximum he may impose without any additional findings." Cunningham v. California, 549 U.S. 270, 280 (2007) (quoting Blakely v. Washington, 542 U.S. 296, 303-04 (2004)). In California, a first degree murder conviction carries a sentence of death, life without parole, or a term of 25 years to life. Cal. Penal Code § 190(a). An indeterminate life sentence is considered a life sentence until the prisoner is determined to be suitable for parole. People v. Dyer, 269 Cal. App. 2d 209, 214 (1969).
Here, petitioner was convicted of first degree murder and received an indeterminate life sentence. Dckt. No. 8 at 1. Since he is serving a life sentence, the Board's denial of parole did not extend his sentence. Accordingly, the rule articulated in Apprendi is inapplicable.
Petitioner's second claim must therefore be dismissed.
III. Establishment Clause Claim
Petitioner claims that the Board violated his rights under the First Amendment by ordering him to attend religious based self-help programs. Dckt. No. 8 at 5. The court construes this argument as a claim that the Board violated the Establishment Clause by conditioning petitioner's release on parol upon the requirement that he participate in religious based self-help programs. Conditioning a grant of parole on an inmate attending religious based self-help programs, such as Alcoholics Anonymous ("AA") or Narcotics Anonymous ("NA"), may violate the Establishment Clause. Inouye v. Kemna, 504 F.3d 705, 713 (9th Cir. 2007). Petitioner's claim lacks merit, however, as the Board did not order petitioner to attend a religious based self-help program or otherwise condition petitioner's release on his participation in such programs.
At the hearing, petitioner stated that he has addressed his problems with substance abuse "[b]y attending NA, by working the steps daily in my program, taking inventory of myself, being more positive, [and] trying to stay sober and clean . . . ." Dckt. No. 1-1 at 30. Although the Board discussed with petitioner his involvement in NA, at no time did the Board state that petitioner was required to attend NA, AA, or any other religious based self-help program. The only statement made at the hearing that could possibly be construed as suggesting that petitioner participate in such programs is a statement made by the presiding commissioner at the closing of the hearing. The presiding commissioner concluded the hearing by stating, "The Panel recommends that the prisoner remain disciplinary-free. If available, participate in self-help and earn positive chronos. That will conclude this hearing at 11:45 a.m." Dckt. No. 1-1 at 66. ...