The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has filed a well written petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the undersigned.
In 1986, petitioner was convicted of murder in the second degree while personally using a knife and sentenced to a prison term of fifteen years to life "plus one" or 16 years to life. Petitioner challenges the 2011 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole, and in requiring him to wait five years before another eligibility hearing. Petitioner contends:1) "petitioner was arbitrarily and capriciously deprived of his due process right to a full and fair hearing by a neutral hearing body where the standards which the panel utilized in order to deny him parole are not specified by statute or regulation;" 2) "application of Cal. Pen. Code § 3041.5(b)(3), as amended by Proposition 9 (Marsy's Law), to petitioner's 1986 offense violated state/federal prohibitions against the application of ex post facto law. Petition, pp. 1, 18-35, 41, 49, 217.*fn1
Petitioner breaks claim 1into three sub-claims: a) "a 'moderate risk of danger (as opined by the latest psychological report) cannot reasonably be translated to mean 'unreasonable risk"; b) "[t]he risk assessment factors relied upon by the Board were based on an invalid, underground standard which was disapproved due to lack [of] clarity;" c) "[petitioner's ability to conduct himself in a nonviolent manner for the past 25 years indicates that he will be able to live in society without committing additional violent or dangerous antisocial acts."
As to petitioner's claim 1, including the three sub-claims outlined
above, petitioner is informed that on January 24, 2011, the United
States Supreme Court in a per curiam decision found that the Ninth
Circuit erred in commanding a federal review of the state's
application of state law in applying the "some evidence" standard in
the parole eligibility habeas
context. Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 861 (2011).
Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct.
475 (1991), the Supreme Court re-affirmed that "'federal habeas corpus
relief does not lie for errors of state law.'" Id. While the high
court found that the Ninth Circuit's holding that California law does
create a liberty interest in parole was "a reasonable application of
our cases" (while explicitly not reviewing that holding),*fn2
the Supreme Court stated:
When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication-and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal.
Swarthout v. Cooke, at 862.
Citing Greenholtz,*fn3 the Supreme Court noted it had found under another state's similar parole statute that a prisoner had "received adequate process" when "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout v. Cooke, at 862. Noting their holding therein that "[t]he Constitution  does not require more," the justices in the instances before them, found the prisoners had "received at least this amount of process: They 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." Id.
Petitioner has provided a copy of the BPH subsequent parole consideration hearing at issue in this action which demonstrates that petitioner was "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout, at 862; see Exhibit to Petition, pp. 217-266.*fn4
The Supreme Court was emphatic in asserting "[t]hat should have been the beginning and the end of the federal habeas courts' inquiry...." Swarthout v. Cooke, at 862. "It will not do to pronounce California's 'some evidence' rule to be 'a component' of the liberty interest...." Id., at 863. "No opinion of ours supports converting California's "some evidence" rule into a substantive federal requirement." Id., at 862. Thus, it appears there is no federal due process requirement for a "some evidence" review and federal courts are precluded from review of the state court's application of its "some evidence" standard.
Moreover, petitioner cannot successfully argue that every asserted departure from what he believes to be required by California law is transmuted into a due process violation. Swarthout would be meaningless if it could be so easily avoided.
As to claim 2, petitioner's claim that Cal. Pen. Code § 3041.5(b)(3), as amended by Marsy's Law (Proposition 9), is an ex post facto law resulting in an increased deferral period (in the instant case, five years) before his next parole suitability hearing is not a challenge to the parole denial decision itself and is, therefore, not cognizable under 28 U.S.C. § 2254. Although petitioner's ultimate goal is a speedier release from incarceration, the immediate relief sought on this ground vis-a-vis Marsy's Law is a speedier opportunity to attempt to convince BPH once again that he should be released; that is too attenuated from any past finding by the BPH of parole suitability for such a claim to sound in habeas. Rather this claim is a challenge to the constitutionality of state procedures denying parole eligibility or suitability and could properly proceed pursuant to an action under 42 U.S.C. § 1983. Skinner v. Switzer, ___U.S.___, 131 S. Ct. 1289, 1298 (2011) ("Success in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction"); id,, citing Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S. Ct. 1242, 1248 (2005) ("Success...does not mean immediate release from confinement or a shorter stay in prison" but "at most [a] new eligibility review...." or "a new parole hearing...."). Moreover, the High Court in Wilkinson expressly noted that a claim seeking "an injunction barring future unconstitutional procedures did not fall within habeas' exclusive domain." Id. at 81, 125 S.Ct. at 1247 [emphasis in original.] Even earlier, the Ninth Circuit had found that the challenge of inmates to a sex offender treatment program as a violation of, inter alia, the ex post facto clause and their due process rights was appropriate under § 1983 because victory could only result in "a ticket to get in the door of the parole board....," and did not undermine the validity of convictions or continued confinement. Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997).
Moreover, currently, there is a class action proceeding, Gilman v. Brown, CIV-S-05-0830 LKK GGH,*fn5 wherein "the procedures used in determining suitability for parole: the factors considered, the explanations given, and the frequency of the hearings" are what is at issue. Id., p. 8 [emphasis in original]. The ...