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Victor Ballesteros v. Gary Swarthout

October 3, 2012

VICTOR BALLESTEROS, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



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 challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his parole consideration hearing held on June 10, 2009. He claims that the Board's decision violated the Ex Post Facto Clause and his right to due process. The matter has been fully briefed by the parties and is submitted for decision. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied with respect to his due process claim and that his Ex Post Facto claim be dismissed without prejudice.

I. Procedural Background

Petitioner is confined pursuant to a 1990 judgment of conviction entered against him in the Riverside County Superior Court following his conviction on a charge of second degree murder. (Doc. 1 at 1.) Pursuant to that conviction, petitioner was sentenced to fifteen years to life in state prison. (Id.)

The parole consideration hearing that is placed at issue by the instant federal habeas petition was held on June 10, 2009. (Doc. 1 at 64.) Petitioner appeared at and participated in the hearing. (Id. at 66, et seq.) Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for three years and the reasons for that decision. (Id. at 142-59.)

Petitioner filed three petitions challenging the Board's 2009 decision and seeking habeas relief in the state courts. On October 14, 2009, petitioner filed a petition for writ of habeas corpus in the Riverside County Superior Court. (Answer, Ex. 2.) On November 12, 2009, that court denied the petition. (Doc. No. 17-13 at 53-56.) Subsequently, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District. (Answer, Ex. 3.) On March 15, 2010, the state appellate court denied that petition. (Doc. No. 17-13 at 61.) Finally, on March 23, 2010, petitioner filed a petition for review with the California Supreme Court. (Answer, Ex. 4.) On May 4, 2010, the California Supreme Court denied review. (Doc. No. 17-14 at 7.)

On June 1, 2010, petitioner commenced this action by filing a federal petition for writ of habeas corpus, presenting the following two claims:

I. The BPH's [Board's] decision to deny parole was not supported by any reliable evidence that petitioner currently poses an unreasonable risk of danger to society and was arbitrary in violation of petitioner's right to due process of law under the Fourteenth Amendment and the California Constitution.

II. The application of Marsy's Law to petitioner violated the Ex Post Facto Clause of the State and Federal Constitutions. (Doc. No. 1 at 24, 36.)

II. Standards of Review

Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal 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 Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...


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