United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254, challenging the November 8, 2011 decision by the California Board of Parole Hearings ("BPH") finding him unsuitable for parole and the BPH's application of Marsy's Law at his 2011 hearing. Pending before the court is respondent's May 5, 2014 motion to dismiss, on the grounds that the petition fails to raise cognizable federal habeas claims, arguing that: 1) petitioner's challenge of the BPH's decision finding him unsuitable for parole does not warrant federal habeas review under Swarthout v. Cooke, ___ U.S. ___ , 131 S.Ct. 859, 861, 178 L.Ed.2d 732 (2011); and 2) petitioner's Ex Post Facto claim should be dismissed as petitioner is a class member in Gilman v. Brown, 2:05-cv-00830-LKK-GGH, which deals with the same claim. Petitioner has filed an opposition repeating his challenge to the evidence the BPH relied upon in finding him not suitable for parole and stating that he did not object to dismissal of his Ex Post Facto claim, to the extent he is a member of the Gilman class. The undersigned now issues the following findings and recommendations granting respondent's motion to dismiss.
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 context. Swarthout , 131 S.Ct. at 861. Quoting, inter alia, Estelle v. McGuire , 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed. 385 (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 not create a liberty interest in parole was a "reasonable application of our cases" (while explicitly not reviewing that holding), 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 , 131 S.Ct. at 862.
Citing Greenholtz,  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 , 131 S.Ct. 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.
The Supreme Court was emphatic in asserting "[t]hat should have been the beginning and the end of the federal habeas courts' inquiry...." Swarthout , 131 S.Ct. 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. The Ninth Circuit recently noted that in light of Swarthout v. Cooke , certain Ninth Circuit jurisprudence had been reversed and "there is no substantive due process right created by California's parole scheme." Roberts v. Hartley , 640 F.3d 1042, 1046 (9th Cir. 2011). Thus, 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.
Petitioner raises four claims in this case: 1) the BPH relied on facts not in evidence; 2) the BPH failed to perform its statutory duty under California law; 3) the BPH's finding that petitioner was not suitable for parole was not supported by some evidence; and 4) the BPH's application of Marsy's Law at his 2011 hearing violated ex post facto principles.
With respect to claims one and three, petitioner is essentially challenging the some evidence used to deny him parole. For example, petitioner does not agree with the weight the BPH assigned to a prison disciplinary decision that he received. As discussed above, the evidence used to support the "some evidence" standard cannot be reviewed by this court. A review of the records attached to petitioner's brief (ECF No. 3) indicates that petitioner was represented by counsel at the hearing, had an interpreter present and both petitioner and counsel were allowed to speak and contest the evidence. These claims may not be reviewed by this court and should be dismissed.
Petitioner's second claim asserts an error under state law. Federal habeas relief is not available for such a claim. Swarthout , 131 S.Ct. at 861. As such, petitioner's second claim should be dismissed.
Petitioner's fourth claim is an ex post facto claim regarding Proposition 9 that changed California Penal Code § 3041.5(b)(2) which resulted in sometimes less-frequent parole hearings for inmates who have served enough of their sentence to be at least eligible for parole. This claim is not properly brought in habeas petition and petitioner is part of the class action, Gilman v. Fisher, CIV-S-05-0830 ...