United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner paid the filing fee. Petitioner was sentenced to
29 years to life with the possibility of parole based on a
1993 Superior Court of Contra Costa County conviction for
first degree murder with use of a firearm, in violation of
California Penal Code §§ 187, 12022.5. See
Evans v. Swarthout, Case No. CIV S-11-2245 CKD P (E.D.
Cal.) (ECF No. 10 at 1). Petitioner's instant claims
concern the fact that he was denied parole in 2015.
Rule 4 of the Rules Governing § 2254 Cases, the court
must conduct a preliminary review of § 2254 habeas
petitions and dismiss any claims where it plainly appears
that petitioner is not entitled to relief. The court has
conducted that review with respect to the petition filed June
parole scheme contemplates that a prisoner sentenced to a
term of life with the possibility of parole must be found
suitable for parole before a parole date can be set.
Penal Code § 3041(b) and related implementing
regulations set forth criteria for determining whether a
prisoner is suitable for parole. See Cal. Code Regs.
tit. 15, § 2402. The prisoner must be found unsuitable
and denied a parole date if, in the judgment of the panel, he
will pose an unreasonable danger to society if released. Cal.
Code Regs. tit. 15, § 2402(a). "The panel shall set
a base term for each life prisoner who is found suitable for
parole." Cal. Code Regs. tit. 15, § 2403.
Swarthout v. Cooke, 562 U.S. 216 (2011) (per
curiam), the Supreme Court considered a habeas claim that a
California state prisoner's right to federal due process
was violated by parole unsuitability findings that were not
supported by "some evidence." Id. The
Supreme Court concluded that, while a state, such as
California, may create "a liberty interest in parole,
" the existence of such a state liberty interest does
not give rise to a federal right to be paroled. Id.
at 861-62 ("There is no right under the Federal
Constitution to be conditionally released before the
expiration of a valid sentence, and the States are under no
duty to offer parole to their prisoners."). Rather, the
federal due process protection for such a state-created
liberty interest is "minimal" and limited to
whether "the minimum procedures adequate for due-process
protection of that interest" have been met, namely,
whether the prisoner was given the opportunity to be heard
and received a statement of the reasons why parole was
denied. Id. at 862-63; Miller v. Oregon Bd. of
Parole and Post-Prison Supervision, 642 F.3d 711, 716
(9th Cir. 2011) ("The Supreme Court held in Cooke that
in the context of parole eligibility decisions the due
process right is procedural, and entitles a prisoner to
nothing more than a fair hearing and a statement of reasons
for a parole board's decision."). This procedural
question is "the beginning and the end of" a
federal habeas court's inquiry into whether due process
has been violated when a state prisoner is denied parole.
Cooke, 131 S.Ct. at 862.
instant first and third claims, petitioner's allegations
concern the substance of the 2015 parole hearing. Petitioner
claims that the panel's decision was not based on the
evidence, and that each commissioner was unfair, or not
impartial, based on ignoring pre-commitment factors, and
focusing on post-commitment factors during the hearing.
However, petitioner does not allege that he was denied the
opportunity to be heard at the 2015 parole hearing, or that
there was no statement of the reasons why the hearing panel
decided to deny him parole. (ECF No. 1.) Thus, petitioner
received all the process due him under the Due Process
Clause,  and his first and third claims must be
dismissed. Swarthout, 131 S.Ct. 862; see also
Miller, 642 F.3d at 717; Roberts v. Hartley,
640 F.3d 1042, 1046 (9th Cir. 2011) (under the decision in
procedural due process requirement is met as long as the
state provides an inmate seeking parole with an opportunity
to be heard and a statement of the reasons why parole was
denied); Pearson v. Muntz, 639 F.3d 1185, 1191 (9th
Cir. 2011) ("While the Court did not define the minimum
process required by the Due Process Clause for denial of
parole under the California system, it made clear that the
Clause's requirements were satisfied where the inmates
‘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.'")
second claim, petitioner claims that the Board miscalculated
his adjusted base term which, coupled with the imposed five
year denial of parole, imposes a sentence that exceeds his
maximum release date, deprives him of post-conviction
credits, and prevents the court from deciding the
proportionality of his punishment. (ECF No. 1 at 8.)
second claim is not cognizable. A state prisoner is entitled
to federal habeas relief only if he is being held in custody
in violation of the Constitution, laws, or treaties of the
United States. 28 U.S.C. § 2254(a). Unless an issue of
federal constitutional or statutory law is implicated by the
facts presented, the claim is not cognizable in federal
habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68
(1991). Federal habeas corpus relief "does not lie for
error of state law." Lewis v. Jeffers, 497 U.S.
764, 780 (1990) (citations omitted). A petitioner may not
transform a state-law issue into a federal one merely by
asserting a violation of due process. Langford v.
Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Alleged errors
in the interpretation or application of state law, which
includes alleged errors in the state post-conviction review
process, do not warrant habeas relief. Hubbart v.
Knapp, 379 F.3d 773, 779-80 (9th Cir. 2004); Franzen
877 F.2d 26 (9th Cir. 1989). Moreover, as set forth above,
petitioner was afforded the minimum procedures required under
the Due Process Clause and he therefore cannot state a claim
for violation of his due process rights. "There is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence." Greenholtz v. Inmates of the Nebraska
Penal & Correctional Complex, 442 U.S. 1, 8 (1979).
extent petitioner contends that the denial of parole violated
the Eighth Amendment because his sentence is
disproportionate, such claim is unavailing. A criminal
sentence that is "grossly disproportionate" to the
crime for which a defendant is convicted may violate the
Eighth Amendment. Lockyer v. Andrade, 538 U.S. 63,
72 (2003); Rummel v. Estelle, 445 U.S. 263, 271
(1980). However, outside of the capital punishment context,
the Eighth Amendment prohibits only sentences that are
extreme and grossly disproportionate to the crime. United
States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992)
(quoting Harmelin v. Michigan, 501 U.S. 957, 1001
(1991) (Kennedy, J., concurring)). Such instances are
"exceedingly rare" and occur in only
"extreme" cases. Lockyer, 538 U.S. at 73;
Rummel, 445 U.S. at 272. "A punishment within
legislatively mandated guidelines is presumptively valid.
‘Generally, so long as the sentence imposed does not
exceed the statutory maximum, it will not be overturned on
eighth amendment grounds.'" United States v.
Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998) (citing
United States v. McDougherty, 920 F.2d 569, 576 (9th
United States Supreme Court has held that a life sentence is
constitutional, even for a non-violent property crime.
See Rummel, 445 U.S. at 265-66 (upholding a life
sentence with the possibility of parole, imposed under a
Texas recidivist statute, for a defendant convicted of
obtaining $120.75 by false pretenses, an offense normally
punishable by imprisonment for two to ten years); see
also Harmelin, 501 U.S. at 961, 994-96 (upholding a
sentence of life without the possibility of parole for a
defendant convicted of possessing more than 650 grams of
cocaine, although it was his first felony offense).
Accordingly, a life sentence for a first-degree murder, such
as that committed by petitioner, would not constitute cruel
and unusual punishment under the Eighth Amendment. See
Plascencia v. Alameida, 467 F.3d 1190, 1204 (9th Cir.
2006) (holding that a sentence of fifty years to life for
murder with use of a firearm is not grossly
disproportionate); People of Territory of Guam v.
Sablan, 584 F.2d 340, 341 (9th Cir. 1978) (upholding a
life sentence for first degree felony murder); United
States v. LaFleur, 971 F.2d 200, 211 (9th Cir. 1991)
(upholding life imprisonment for first degree murder).
accordance with the above, IT IS HEREBY RECOMMENDED that
petitioner's application for a writ of habeas corpus be
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(l). Within fourteen
days after being served with these findings and
recommendations, petitioner may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned "Objections to Magistrate
Judge's Findings and Recommendations." If petitioner
files objections, he shall also address whether a certificate
of appealability should issue and, if so, why and as to which
issues. A certificate of appealability may issue under 28
U.S.C. § 2253 "only if the applicant has made a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(3). ...