FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of twenty-seven years to life in state prison following his 1982 conviction on charges of first degree murder with a sentencing enhancement for use of a weapon.
In his federal habeas petition, petitioner challenges a 2010 decision of the California Board of Parole Hearings (Board) to deny him a parole date for a period of seven years. Petitioner claims that his right to due process was violated because: the Board relied unfairly on his commitment offense and certain pre-commitment offense factors to deny him parole; the Board's decision was arbitrary and capricious; he was denied a fair parole suitability hearing; and the Board failed to provide him a "factually adequate" statement of reasons for the denial of parole. (Pet. (Doc. No. 1), at 2, 3 & 25.) Petitioner also claims that application of the provisions of Proposition 9, so-called Marsy's Law, at his parole hearing violated the Ex Post Facto Clause of the United States Constitution. This matter is before the court on respondent's motion to dismiss pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (hereinafter "Habeas Rules"). Petitioner opposes the motion in part.
Rule 4 of the Habeas Rules requires the court to summarily dismiss 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." A motion for summary dismissal pursuant to Rule 4 of the Habeas Rules is an appropriate motion in habeas proceedings. See O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990).
In his first claim for relief, petitioner contends that the Board's 2010 decision to deny him parole violated his federal constitutional right to due process of law because it was not supported by sufficient evidence and the Board relied unfairly on his commitment offense and certain pre-commitment offense factors when consideration of other factors supported his release on parole.
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 attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).
A protected liberty interest may arise from either the Due Process Clause of the United States Constitution "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). SeealsoBoard of Pardons v. Allen, 482 U.S. 369, 373 (1987). 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. See alsoAllen, 482 U.S. at 376-78.
California's parole statutes give rise to a liberty interest in parole protected by the federal due process clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002); see also Swarthout v. Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 861-62 (2011) (finding the Ninth Circuit's holding in this regard to be a reasonable application of Supreme Court authority); Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) ("[Swarthout v.] Cooke did not disturb our precedent that California law creates a liberty interest in parole.") 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).
In Cooke, the Supreme Court reviewed two cases in which California prisoners were denied parole - in one case by the Board, and in the other by the Governor after the Board had granted parole. Cooke, 131 S. Ct. at 860-61. The Supreme Court noted that when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment requires fair procedures, "and federal courts will review the application of those constitutionally required procedures." Id. at 862. The Court concluded that in the parole context, however, "the procedures required are minimal" and that the "Constitution does not require more" than "an opportunity to be heard" and being "provided a statement of the reasons why parole was denied." Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit decisions that went beyond these minimal procedural requirements and "reviewed the state courts' decisions on the merits and concluded that they had unreasonably determined the facts in light of the evidence." Cooke, 131 S. Ct. at 862. In particular, the Supreme Court rejected the application of the "some evidence" standard to parole decisions by the California courts as a component of the federal due process standard. Id. at 862-63. See also Pearson, 639 F.3d at 1191.*fn1
Relying on the decision in Superintendent v. Hill, 472 US 445, 456 (1985), petitioner argues that the federal due process clause requires that a parole denial be support by at least "some evidence" in order to avoid arbitrary decisionmaking. Petitioner contends that in Cooke the Supreme Court only held that the federal courts did not have the authority to grant habeas relief based on a determination that the state courts had erred in applying the "some evidence" standard that the California Supreme Court has determined applies to California parole decisions. Petitioner argues that the Supreme Court did not answer the question of whether the federal due process clause itself requires a parole denial be supported by at least the "some evidence," as required by Superintendent v. Hill, in order to avoid arbitrary decisionmaking. Even if this contention were to have some persuasive force, it has specifically been foreclosed by the Supreme Court. See Cooke, 131 S. Ct. at 862 ("No opinion of ours supports converting California's 'some evidence' rule into a substantive federal requirement."); Cooke, 131 S. Ct. at 863 (Justice Ginsburg, concurring) (Concluding that the Ninth Circuit has recognized Greenholtz as the controlling precedent in assessing the denial of parole under California's system and not the Hill standard applicable to revocation of a prisoner's good time credits.)
Here, it is plain from the record in this case that petitioner was present at his 2010 parole consideration hearing, that he participated in that hearing, and that he was provided with the reasons for the Board's decision to deny him parole. See Respondents' Motion to Dismiss (Doc. No. 10 ), at Ex. P. According to the United States Supreme Court, the federal due process clause requires no more. Petitioner is therefore not entitled to federal habeas relief with respect to his claim one.
II. Ex Post Facto Violation
Petitioner's second claim for relief is that the Board violated the Ex Post Facto Clause by applying to him a longer period of time between parole consideration hearings in accord with the provisions of California's Proposition 9, also known as Marsy's Law, enacted into law in November 2008. Petitioner was convicted and sentenced to 27 years to life in prison with the possibility of parole in 1982, twenty-six years prior to the passage of Proposition 9.
Prior to enactment of Proposition 9, California law provided that parole hearings were to be conducted annually and the Board was authorized to defer subsequent hearings for "'[t]wo years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted a hearing during the following year and states the bases for the finding'" or up to five years for convicted murderers. Gilman v. Schwarzenegger, 638 F.3d 1101, 1104 (9th Cir. 2011) (quoting ...