ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of seven years to life imprisonment with the possibility of parole following his 1990 conviction of kidnaping for ransom, false imprisonment and burglary. Petitioner challenges a 2010 decision of the California Board of Parole Hearings ("Board") which denied him parole and deferred a subsequent parole hearing for ten years. Petitioner asserts that his due process rights were violated by the Board's parole denial ("Claim I"). Additionally, he claims that the Board's application of the provisions of Marsy's Law, or Proposition 9, at the 2010 hearing violated the Ex Post Facto Clause of the United States Constitution ("Claim II"). Finally, plaintiff alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated by the Board ("Claim III").
The 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 (Habeas Rules). Petitioner opposes the motion.
Rule 4 of the Habeas Rules requires a judge 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).
Petitioner asserts that he did not receive all of the due process that was owed to him at the 2010 parole hearing as he had a liberty interest in parole because he is not a current danger to public safety. 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 asserting 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. See Ky. Dep't of Corr. 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); see also Bd. 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. See 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. See Greenholtz, 442 U.S. at 12; see also Allen, 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. See, e.g., Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (per curiam). In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. See In re Lawrence, 44 Cal. 4th 1181, 1205-06, 82 Cal. Rptr. 3d 169, 190 P.3d 535 (2008); In re Rosenkrantz, 29 Cal. 4th 616, 651-53, 128 Cal. Rptr. 2d 104, 59 P.3d 174 (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." 131 S. Ct. at 862. 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.
Petitioner asserts that his liberty interest under the Due Process Clause was violated by the 2010 parole denial. Petitioner does not assert in his petition that he was denied the procedural protections outlined in Greenholtz and reaffirmed in Swarthout. Petitioner attached to his petition a copy of the Superior Court of California, County of Los Angeles, May 5, 2010 decision on his state habeas petition. In that decision, the Superior Court noted that "[p]petitioner chose not to attend his most recent suitability hearing on January 5, 2010," and that the Board stated its reasons for denying petitioner parole. (See Dkt. No. 1 at Ex. B.). Thus, petitioner was afforded the applicable procedural protections that due process requires as stated by the United States Supreme Court. Therefore, Claim I should be denied.
II. Claim II - Ex Post Facto
Next, petitioner claims that the Board violated the Ex Post Facto Clause by applying Proposition 9, or Marsy's Law, which was enacted after petitioner's conviction and sentence. Petitioner claims Mary's Law lengthened the time between parole hearings and changed the burden of proof with respect to when his next parole hearing date will be held. Prior to the enactment of Marsy's Law, 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 at a hearing during the following year and states the bases for the findings" or up to five years for convicted murderers. See Gilman v. Schwarzenegger, 638 F.3d 1101, 1104 (9th Cir. 2011) (internal quotation marks and citation omitted). "Proposition 9 significantly changed the law governing deferral periods." Id.
The most significant changes are as follows: the minimum deferral period is increased from one year to three years, the maximum deferral period is changed from five years to fifteen years, and the default deferral period is changed from one year to fifteen years. Further, the burden to impose a deferral period other than the default period was increased. Before Proposition 9 was enacted, the deferral period was one year unless the Board found it was unreasonable to expect the prisoner would become suitable for parole within one year. After Proposition 9, the deferral period is fifteen years unless the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in ten years, in which case the deferral period is ten years. If the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in seven years, the Board has discretion to set a three-, five-, or seven-year deferral period.
As previously stated, the Board set a ten-year deferral period for petitioner at the 2010 hearing, seven years longer than the maximum deferral period under the earlier provisions of California law. For the reasons set forth infra, this claim must be dismissed because petitioner is a member of the class in Gilman v. Fisher, 05-0830 LKK GGH P (Gilman), an action which includes the issue presented by petitioner's Ex Post Facto Clause claim. In findings and recommendations filed October 5, 2012, a magistrate judge in this court set forth standards relevant to this analysis:
Prior to the enactment of Marsy's Law, the Board deferred subsequent parole suitability hearings with respect to indeterminately-sentenced inmates for one year unless the Board determined it was unreasonable to expect that parole could be granted the following year. If that determination was made, the Board could then defer the inmate's subsequent parole suitability hearing for up to five years. See Cal. Pen. Code § 3041.5(b)(2) (2008). Marsy's Law, . . ., amended § 3041.5(b)(2) to impose a minimum deferral period for subsequent parole suitability hearings of three ...