Opinion
Civil No. 05cv1466-BTM (POR).
March 28, 2006
REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Tommy Lee Gladney ("Petitioner") is a California prisoner serving an indeterminate sentence of seven years to life for first degree murder with concurrent terms for two counts of robbery with the use of a firearm. Petitioner pled guilty to the charges in 1971 and has served thirty-four years of his sentence. He has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254, asserting that the Board of Parole Hearings (Board) erroneously denied him parole, contravening his liberty and due process rights, and violating the prohibition against ex post facto laws. This Court has reviewed the Petition, Respondent's Answer, Petitioner's Traverse, and all supporting documents. After a thorough review of the record, the Court finds the Petitioner is not entitled to the relief requested and RECOMMENDS that the Petition be DENIED and the case be DISMISSED WITH PREJUDICE.
II. Procedural History
Petitioner challenges the denial of parole resulting from his 2003 parole hearing. On June 4, 2003, Petitioner's parole hearing resulted in a split decision by the Board. Deputy Commissioner May found Petitioner suitable for parole, and Presiding Commissioner Lawin found Petitioner unsuitable for parole. (Pet'r Ex. A at 54-58.) The tie vote required an en banc hearing by the Board. See Cal. Penal Code § 3041(a). The en banc hearing resulted in a finding of unsuitability by a unanimous vote on July 8, 2003. (Pet'r Ex. I.) Petitioner filed an administrative appeal of the en banc decision. This appeal was denied on December 9, 2003. (Answer at 3.)Petitioner filed a Petition for Writ of Habeas Corpus with the California Superior Court, which was denied on June 3, 2004, in a written opinion. (Pet'r Ex. B.) Petitioner then filed a Petition for Writ of Habeas Corpus in the California Court of Appeal for the Fourth District, which was denied in a written opinion on January 5, 2005. (Pet'r Ex. C.) Petitioner filed a final state habeas petition in the California Supreme Court, which was denied without comment on March 30, 2005. (Resp't Ex. 6.)
On July 21, 2005, Petitioner filed a federal Petition for Writ of Habeas Corpus with this Court, along with a Memorandum of Points and Authorities and several exhibits. Petitioner also filed a Motion to Exceed Page Limits for his Petition and Memorandum of Points and Authorities, which this Court granted on July 27, 2005. On August 22, 2005, Petitioner filed a Motion for Relief from Default, believing the statute of limitations expired prior to the date he filed the Petition. The Court denied this motion as moot because Respondent had not yet filed a responsive pleading.
Respondent did not move to dismiss the Petition on statute of limitations grounds, but preserved the procedural defense. ( See Resp't Mem. P. A. at 4). The statute of limitations issue is discussed below.
On October 6, 2005, the deadline for answering, Respondent applied for an enlargement of time in which to answer. The Court granted Respondent's application, and Respondent answered on November 4, 2005. Respondent's Answer was supported by a Memorandum of Points and Authorities and exhibits.
On November 1, 2005, Petitioner filed an ex parte Motion for Request for Judicial Notice of Additional Authorities. The Court granted Petitioner's ex parte motion on November 3, 2005. On November 30, 2005, Petitioner filed a Traverse to Respondent's Answer, supported by a Memorandum of Points and Authorities.
Petitioner's document is entitled "Petitioner's Reply to Respondent's Answer." This Court refers to the document as "Petitioner's Traverse," consistent with habeas corpus procedure.
III. Scope of Review
Title 28 U.S.C. section 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a) (2006).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to habeas corpus petitions filed after 1996. Lindh v. Murphy, 521 U.S. 320 (1997). The current petition was filed on July 21, 2005, and is governed by the AEDPA. As amended, 28 U.S.C. section 2254(d) now reads:
(d) 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 presented in the State court proceeding.28 U.S.C. § 2254(d) (2006).
The Court is aware that the Ninth Circuit has pending before it a case in which two judges of the three-judge panel have called into question the application of AEDPA in parole cases. See Irons v. Carey, 408 F.3d 1165 (9th Cir. 2005) (ordering parties to submit supplemental briefs discussing "whether AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction"). This Report Recommendation applies the law of the Ninth Circuit as it presently stands.
To obtain federal habeas relief, Petitioner must satisfy either section 2254(d)(1) or section 2254(d)(2). Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets section 2254(d)(1) as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decided a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 529 U.S. at 412-13.
The AEDPA also requires deference be given to state court findings of fact, with state court factual determinations presumed correct unless the petitioner rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (2006). Although claims under section 2254(d)(2) are rare, perhaps because of this deferential standard, a state court decision may be found to be "based on an unreasonable determination of the facts in light of the evidence presented" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), overruled on other grounds by Lindh, 521 U.S. at 320.
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record "to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
In this case, the California Supreme Court denied Petitioner's state petition for Writ of Habeas Corpus without comment or citation. Therefore, this Court looks to the reasoned opinion provided by the California Court of Appeal in reviewing Petitioner's claims with respect to the denial. Nunnemaker, 501 U.S. at 801-06.
IV. Factual History
The Court of Appeal did not address in detail the facts surrounding the crime. The facts are largely undisputed, and summarized as follows by the Superior Court:
Petitioner resumed using drugs after being released on parole for a previous robbery. To support his drug habit, he committed yet another armed robbery. The clerk cooperated fully and gave Petitioner and his crime partner all the money in the store, but there was very little. Petitioner then instructed the clerk to return to the counter. When he did so, Petitioner told him to turn around so that his back was facing Petitioner. Petitioner then took careful aim and shot the clerk in the head at close range. Two other customers were present and witnessed the murder. As Petitioner and his companion were running from the store, Petitioner was heard saying "He didn't believe I'd do it."
(Pet'r Ex. B at 5-6.)
The circumstances of the sentencing are also largely undisputed, as summarized by the Court of Appeal:
In 1971 petitioner was sentenced to seven years-to-life for first degree murder with concurrent terms for two counts of robbery with the use of a firearm. Petitioner was denied parole at his initial and three subsequent parole hearings between 1978 and 1981. He was found suitable for parole at a 1984 hearing. After he was convicted in superior court and sentenced to a concurrent term for possession of drug paraphernalia in prison, his parole grant was rescinded. At six subsequent parole hearings between 1990 and 2002, the Board of Prison Terms (BPT) has found him unsuitable for parole. At his 12th parole hearing in 2003, one commissioner found him suitable for parole and one commissioner found him unsuitable. The full board at an en banc hearing subsequently found him unsuitable for parole.
(Pet'r Ex. C at 1.)
Petitioner now challenges his continued incarceration because he has been repeatedly found unsuitable for parole, claims which were similarly raised in his state court petitions. ( See Pet'r Ex. C at 2; see also Resp't Ex. 5 at i-ii.) Petitioner has therefore exhausted the available state court remedies. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 515 (1982).
In the instant federal Petition, Petitioner states four claims for relief. First, Petitioner alleges that the state courts deprived him of fundamental due process of law by failing to accord proper deference to the federal precedent on constitutional law. Second, Petitioner claims the state courts violated his due process rights by failing to apply the correct standard of judicial review. Third, Petitioner claims the Board violated the Due Process clause of the Constitution in denying him parole. Finally, Petitioner alleges his exclusion from the benefits of the Indeterminate Sentencing Law violates due process and the prohibition against ex post facto laws.
For each claim in the petition, Petitioner attaches additional pages of supporting facts and argument, all of which have been considered by this Court and are addressed below.
V. Discussion
A. Statute of Limitations
This Court first addresses the threshold issue of whether Petitioner's claims are barred by the statute of limitations. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The AEDPA establishes a one-year limitation period in which state prisoners may file habeas petitions in federal court. 28 U.S.C. § 2244(d)(1)(2006). The one-year limitation applies to all habeas petitions filed by persons in custody pursuant to the judgment of a state court, even if the petition challenges an administrative decision rather than a state court judgment. Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004). Section 2244(d) states:
(1) A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
Subparagraph (D) applies to habeas petitions challenging the decisions of parole boards. Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2001). Subparagraph (A) is inapplicable because the word "judgment" refers to the judgment of conviction and sentence, and the words "direct review" refer to the direct appellate review of that judgment. Id. Petitioner does not allege that state action created an impediment to filing his petition, nor does he allege the existence of a newly-recognized right by the Supreme Court. Subparagraphs (B) and (C) are therefore also inapplicable. Under subparagraph (D), the statute of limitations begins running from the date on which "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(1)(D).
The statute of limitations tolls during the period in which a "properly filed" application for state collateral review is "pending." 28 U.S.C. § 2244(d)(2). AEDPA's statute of limitations tolls from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). The limitations period does not toll during the period between the finality and the filing of an application for collateral review in state court because no state court application is "pending." Id. Likewise, the tolling period ends once the California Supreme Court rejects a petitioner's final challenge. Id. at 1006-07.
The factual predicate of Petitioner's claims is the Board's denial of his administrative appeal on December 9, 2003. See Redd, 343 F.3d at 1082. The statute of limitations began to run on the following day, December 10, 2003. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (calculating AEDPA's one-year statute of limitations according to Federal Rule of Civil Procedure 6(a), which states "in computing any period of time prescribed or allowed by these rules, [the day] from which the designated period of time begins to run shall not be included"). The limitations period ran from December 10, 2003 to April 7, 2004, the date Petitioner filed his state habeas petition in Superior Court. The limitations period tolled until the California Supreme Court denied Petitioner's final state habeas petition on March 30, 2005. The limitations period then resumed until the instant petition was filed on July 21, 2005. After accounting for statutory tolling, the limitations period ran for less than eight months. Petitioner's claim was therefore well within the AEDPA's one-year statute of limitations.
Petitioner mistakenly calculated the limitations period as running during the time between his Superior Court, Court of Appeal, and California Supreme Court petitions. ( See Pet'r Motion for Relief from Default.) Although the limitations period does not toll if there is an unreasonable delay between state court petitions, see Carey v. Saffold, 536 U.S. 214, 222-23 (2002), Petitioner in this case pursued state habeas review in a timely manner. As such, the limitations period tolled for the pendency of Petitioner's state court collateral review. See Nino, 183 F.3d at 1006-07. The court notes, however, that Petitioner would not be entitled to equitable tolling as requested in his Motion for Relief from Default. Neither miscalculation of the limitations period nor general negligence by counsel constitutes extraordinary circumstances sufficient to warrant equitable tolling. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001).
Having determined that the instant petition was timely filed, the Court now turns to the merits of Petitioner's claims.
B. Claim #1: Due Process Violation
Petitioner claims that the Board violated his due process rights by finding him unsuitable for parole, thus depriving him of a liberty interest. (Pet. at 7.) First, the Court must address Respondent's argument that due process principles are inapplicable here because Petitioner does not possess a protected liberty interest in parole under California law. (Resp't Mem. P. A. at 7-11.)
1. Liberty Interest in Parole
The Due Process Clause provides, "[No] state [shall] deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. To trigger due process protections, a plaintiff must establish that he has a "protectible right" or a "legitimate claim of entitlement" as opposed to a mere hope or expectation. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 13 (1978). While there is no right to parole inherent in the Fourteenth Amendment, the Supreme Court has concluded that mandatory language in a state's parole scheme can create a protected liberty interest in conditional release on parole. Greenholtz, 442 U.S. at 7; Board of Pardons v. Allen, 482 U.S. 369, 381 (1987).
The Ninth Circuit has found that California prisoners possess a protected liberty interest in conditional release on parole. See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). In McQuillion, the state argued that the prisoner had no protected interest in parole because the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472 (1995), "eliminated the 'mandatory language' approach of Greenholtz and Allen." Id. at 902. The Ninth Circuit rejected this argument, concluding instead that under Greenholtz and Allen, the petitioner, a California prisoner, possessed a protected liberty interest in parole in light of the mandatory language used in the state's parole statute. Id. at 903. The Court further concluded that the state's reading of Sandin was too broad because Sandin was limited to cases involving internal prison disciplinary regulations and did not apply to state parole determinations. Id. at 903. Subsequently, in Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003), the Ninth Circuit reaffirmed its holding that California prisoners have a constitutionally protected liberty interest in parole.
However, after the Ninth Circuit decided McQuillion and Biggs, the California Supreme Court definitively interpreted the state's parole statute, concluding that the language in the statute is not mandatory and that there is accordingly no right to parole in California. In re Dannenberg, 34 Cal. 4th 1061, 1087 (2005), cert. denied, 74 USLW 3204 (U.S. Oct. 3, 2005) (No. 04-10299). As a general matter, a federal court will defer to a state supreme court's own interpretation of a state statute. See Gurley v. Rhoden, 421 U.S. 200, 208 (1975) ("[A] State's highest court is the final judicial arbiter of the meaning of state statutes."). The Ninth Circuit has not been called to reconsider its holdings in McQuillion or Biggs following the California Supreme Court's decision in Dannenberg, leaving the district courts of this Circuit without any clear guidance as to whether these cases remain binding precedent.
Following Dannenberg, at least one district court has determined that California prisoners do not possess a protected liberty interest in parole. See Sass v. Cal. Bd. of Prison Terms, 376 F. Supp. 2d 975, 981-82 (E.D. Cal. 2005) (deferring to California Supreme Court's Dannenberg decision in finding California prisoner did not possess liberty interest in parole); see also Thomas v. Cal. Bd. of Prison Terms, No. 1:05CV955A, 2005 WL 2397060 (E.D. Cal. Sept. 27, 2005) (Oneill, M.J.) (same); Trevino v. Mendoza-Powers, No. CVF03-6738OWW, 2005 WL 2436471 (E.D. Cal. Oct. 2, 2005) (Snyder, M.J.) (same). On the other hand, other district courts have concluded that even after Dannenberg, California prisoners do possess a federal liberty interest in parole. See Irons v. Warden, 358 F. Supp. 2d 936, 941 (E.D. Cal. 2005); see also Hudson v. Kane, No. C 04-02232SI, 2005 WL 2035590 (N.D. Cal. Aug. 23, 2005) (Illston, J.). Respondent argues that because California law does not mandate parole release, under Greenholtz and Allen, it does not create a federal liberty interest. (Resp't Mem. P. A. at 12).
This Court need not reach a decision regarding whether Petitioner possesses a liberty interest in parole. Even if Petitioner has a federal liberty interest in parole, Petitioner has failed to demonstrate, and the record before this Court does not show, that the Board's decision to deny him parole violated his due process rights.
2. The Parole Denial Did Not Violate Due Process
Petitioner has served thirty-four years of his life sentence. The Board has repeatedly found Petitioner unsuitable for parole since his 1985 in-prison drug offense. Petitioner alleges three due process violations with respect to his parole denial. Petitioner first alleges that California law sets forth a "presumption" mandating parole release. (Pet. at 2.) Second, Petitioner alleges the Board operated by a defective process. (Pet. at 4.) Third, Petitioner alleges that his prima facie showing of suitability required the state court to issue an Order to Show Cause. (Pet. at 3.)
Petitioner first claims that his due process rights were violated because he did not receive the benefit of a "presumption" of parole suitability to which he is entitled under California Penal Code section 3041.5(a). (Pet. at 4.) Claims based on state law are not cognizable grounds for relief in a federal habeas petition. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (observing that "it is not the province of the federal habeas court to reexamine state-court determinations on state-law questions"); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (noting that "federal habeas corpus relief does not lie for errors of state law"). Moreover, "the requirements of due process are satisfied if 'some evidence' supports the decision" of the parole board and "the evidence underlying the board's decision [has] some indicia of reliability." McQuillion, 306 F.3d at 904 (citations omitted).
The California Court of Appeal found sufficient evidence in the record to support the Board's decision. (Pet'r Ex. C at 3.) The Court of Appeals found that the circumstances of Petitioner's offense justified denial of parole "based on the commitment offense alone." ( Id.) The state court also noted Petitioner's "unstable social history," "extensive criminal record," and history of poor performance on parole and related drug abuse. ( Id.) Each of these factors support the decision of the Board to deny Petitioner parole. In reaching its decision, the Court of Appeal reviewed the Board decision under the "some evidence" standard. ( Id., citing In re Rosenkrantz, 29 Cal. 4th 616, 658 (2002).)
Petitioner characterizes the state court decisions as "summary" and "silent." (Pet'r Mem. P. A. at 4-5.) Although the California Supreme Court issued a denial without comment or citation, the Court of Appeal and Superior Court decisions explain their findings in four- and eight-page decisions, respectively. These reasoned decisions preclude this Court from conducting an independent review of the record as Petitioner requests. Rather, this Court "looks through" to the underlying appellate court decision. Ylst, 501 U.S. at 803.
The question before this Court is whether there is any reliable evidence in the record to support the denial of parole. See Superintendent v. Hill, 472 U.S. 445, 455-56 (1985). A prisoner may be found unsuitable for parole if the prisoner "committed the offense in an especially heinous, atrocious, or cruel manner," including situations where the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. See 15 Cal. Code Regs. § 2402(c)(1)(B) (2006). Petitioner admits that his commitment offense involved an execution-style murder. (Pet'r Ex. A at 15.) Although continued reliance on static factors could result in a due process violation, see Biggs, 334 F.3d at 917, the record also contains more recent evidence supporting the Board's finding of unsuitability. Specifically, a 2001 psychiatric evaluation found that Petitioner presents a moderate risk of violence within the community over the next ten years. (Pet'r Ex. A at 36-37.) Although another psychiatrist placed Petitioner's risk for future violence in the low range based on the same data ( see Pet'r Ex. A at 36), the finding of unsuitability is nonetheless supported by some evidence.
The Court of Appeal decision applied the "some evidence" standard, and was thus not "contrary to" federal law. Cf. Williams, 529 U.S. at 412-13. The state court decision must therefore stand, unless it involved an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). A state court decision involves an unreasonable application if the state court identifies the correct governing legal rule from a Supreme Court case but unreasonably applies it to the facts of the particular state prisoner's case. Williams, 529 U.S. at 407. In order to constitute an unreasonable application, the state court's application of clearly established federal law must be "objectively unreasonable." Id. at 409; Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Here, the nature of the commitment offense and competing psychiatric findings do not render the state court decision "objectively unreasonable."
Petitioner's second due process claim alleges that the Board operated by a defective process in finding him unsuitable for parole. Petitioner characterizes the Board's hearing process as a "farce and a sham" (Pet. at 5), and claims that the Board's en banc decision was merely a "straw vote" (Pet'r Mem. P. A. at 12). Due process requires the Board to provide an inmate the opportunity to be heard, and to inform the inmate of the respects to which he falls short of qualifying for parole. Greenholtz, 442 U.S. at 16. Petitioner was notified of his parole hearing and provided an opportunity to be heard. ( See Pet'r Ex. A at 8.) Both commissioners explained the reasons behind their respective findings in the split decision, and that the tie vote necessitated an en banc hearing. ( Id. at 51-61.) No clearly established Supreme Court precedent requires more protection than the due process Petitioner received. In fact, "[m]erely because a statutory expectation exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue confinement." Greenholtz, 442 U.S. at 14. Petitioner's second due process claim therefore fails.
Petitioner's third due process claim alleges that the state courts' failure to issue an Order to Show Cause deprived him of the habeas process required by law. (Pet'r Mem. P. A. at 3.) As previously noted, questions of state law do not form cognizable bases for federal habeas relief. See Estelle, 502 U.S. at 68; see also Lewis, 497 U.S. at 780. This Court therefore cannot grant relief for Petitioner's claim that the state courts should have issued an Order to Show Cause based on his prima facie showing. Within the federal courts, a prima facie case must exist before the court orders the respondent to file an answer, motion, or other response. See Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. This Court required Respondent to file and serve an answer by November 4, 2005. Accordingly, Petitioner received all process due a federal habeas petitioner. Petitioner's third due process claim therefore fails.
C. Claim #2: Improper Standard of Judicial Review
Petitioner's second claim for federal habeas relief contends that the state courts failed to apply the correct standard of review to his state habeas petitions. (Pet. at 7.) Petitioner alleges the state court decisions were contrary to and involved an unreasonable application of federal constitutional law. ( Id.) This claim is without merit.
Petitioner correctly notes that the Supreme Court has held the "some evidence" standard is an additional requirement of due process, not a substitute for other established due process requirements. See Edwards v. Basilok, 540 U.S. 641, 648 (1997). Thus, if Petitioner was not afforded an opportunity to be heard or if the Board failed to inform Petitioner of the respects to which he fell short of parole suitability, Petitioner's due process rights would have been violated, notwithstanding the existence of "some evidence" to support a finding of unsuitability. See Greenholtz, 442 U.S. at 16. However, Petitioner does not allege he was deprived of these additional due process requirements. Rather, Petitioner asserts that the State courts failed to utilize a standard of proof in reviewing the Board's decision. ( See Pet'r Mem. P. A. at 8.)
Settled decisions of the Supreme Court establish that "some evidence" is the proper test for determining federal habeas relief. See Hill, 472 U.S. at 447, 454. Both the Superior Court and California Court of Appeal utilized the "some evidence" standard when reviewing the Board decision. (Pet'r Ex. B at 4; Pet'r Ex. C at 3.) Thus, the state courts applied the correct standard of judicial review in accordance with federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d). Accordingly, Petitioner's second claim for habeas relief fails.
D. Claim #3: Actions of the Board Constitute a Violation of the Due Process Clause of the Fourteenth Amendment
Petitioner's third claim for relief is confused, unwieldy, and contains minimal reference to relevant decisions. Under AEDPA, federal courts may issue a writ of habeas corpus only when the state court decision is "contrary to, or involve[s] an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d); see also Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000). Petitioner ignores this fact and reiterates verbatim his habeas petition to the California Court of Appeal. ( Compare Pet'r Mem. P. A. at 12-38 with Resp't Ex. 3 at 211-34.)
Petitioner first claims that the Board operates in a "condition of arbitrariness" insofar as no regulations or criteria exist to guide the Board in weighing evidence or attaching specific weight to various factors. (Pet'r Mem. P. A. at 12-13.) Parole suitability is, "in a sense, an 'equity' type judgment that cannot always be articulated in traditional findings." Greenholtz, 442 U.S. at 8. Petitioner cites no clearly established federal law mandating a parole board to assign specific "weight" to individual factors. Moreover, regulations establish specific factors for the Board to "weigh." See 15 Cal. Code Regs. § 2402(c), (d). The factors are set forth as general guidelines, and the weight assigned to each particular factor is left to the discretion of the Board. Id. at § 2402(c)). This Court finds "some evidence" to support the state court's finding that Board commissioners "are provided guidance in making their decision." ( See Pet'r Ex. C at 3.)
Petitioner also claims that no "relevant" evidence exists to support the Board's finding of unsuitability. (Pet'r Mem. P. A. at 31, 36.) As previously discussed, the nature of the commitment offense and the 2001 psychiatric evaluation support the decision of the Board. The commitment offense and present mental state are explicitly listed as information to be considered by the Board when deciding parole suitability. See 15 Cal. Code Regs. § 2402(b). This Court is not permitted to re-weigh the evidence and substitute its judgment for that of the Board. See Hill, 472 U.S. at 465.
Finally, Petitioner alleges the en banc proceeding did not comport with due process requirements. (Pet'r Mem. P. A. at 34.) Petitioner characterizes the en banc decision as a "straw poll" taken without reviewing and considering all of the evidence. ( Id. at 35.) According to Petitioner's view, the defects of the en banc hearing could only be cured by "thorough, independent review of Petitioner's entire record." ( Id.) Petitioner does not cite any federal law to support such a requirement. Petitioner received due process at his initial hearing; he was provided an opportunity to be heard, and was informed of the respects to which, in the eyes of Commissioner Lawin, he fell short of qualifying for parole. See Greenholtz, 442 U.S. at 16. California law vests discretion in the Board to conduct "any preparation which is necessary prior to the [en banc] meeting." 15 Cal. Code Regs. § 2044(a). The en banc Board in Petitioner's case considered the findings of the hearing panel in reaching its decision, including Commissioner Lawin's assessment of Petitioner's risk to society. (Pet'r Ex. I.) As previously discussed, "some evidence" exists in the record to support this assessment and finding. Petitioner does not cite, and this Court cannot find, any clearly established federal law describing the requirements of an en banc parole board proceeding. Rather, "[i]t is axiomatic that due process is flexible and calls for such procedural protection as the particular situation demands." Greenholtz, 442 U.S. at 12. This flexibility permits the en banc Board to consider the findings of the initial hearing panel, without conducting an independent review of Petitioner's entire record, when the initial hearing comported with due process requirements. Accordingly, Petitioner's claim fails.
E. Claim #4: Violation of Ex Post Facto Clause
Petitioner's final claim alleges that the Board determined and denied parole according to the Determinate Sentencing Law (DSL), which was enacted after his offense and thus violates his rights under the Ex Post Facto and Due Process clauses of the United States Constitution. (Pet'r Mem. P. A. at 39.) Petitioner claims that under the Indeterminate Sentencing Law (ISL), he would have been found suitable for and released on parole sixteen years ago. (Pet'r Mem. P. A. at 53.) The California Court of Appeal, in denying the state habeas petition, found "the standards for determining suitability for parole were not altered under the DSL." (Pet'r Ex. C at 3 (citing In re Duarte, 143 Cal. App. 3d 943, 951 (1983); In re Seabock, 140 Cal. App. 3d 29, 41 (1983)).) Although Petitioner raises provocative questions regarding his prospects for parole, the decisions by the state courts and Board are neither contrary to nor involve an unreasonable application of federal law.
Commissioner May found Petitioner suitable for parole at his initial hearing. After calculating the base term, enhancements, and post-conviction credits, Commissioner May calculated the total period of confinement to be 229 months. (Pet'r Ex. A at 58.)
Article I, section 10 of the United States Constitution prohibits the states from passing any ex post facto law. An ex post facto law is one that: (1) punishes as a crime an act previously committed, which was innocent when done, (2) makes more burdensome the punishment for a crime, after its commission, or (3) deprives one charged with a crime of any defense available according to the law at the time when the act was committed. See Collins v. Youngblood, 497 U.S. 37, 52 (1990). The focus of ex post facto inquiry is thus "whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." California Dept. of Corrections v. Morales, 514 U.S. 499, 506 n. 3 (1995).
Petitioner was sentenced to an indeterminate term of seven years-to-life. He therefore faces the possibility of spending his life in prison, unless and until the Board finds him suitable for parole. "There is no Constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz, 442 U.S. at 7. Both the Ninth Circuit and California Supreme Court have held that the shift from ISL to DSL did not alter suitability determinations. See Connor v. Estelle, 981 F.2d 1032, 1033-34 (9th Cir. 1992); see also In re Duarte, 143 Cal. App. 3d at 951. Thus, Petitioner's continued incarceration does not violate the Ex Post Facto clause, as it does not increase the "penalty by which [his] crime is punishable." Morales, 514 U.S. at 506 n. 3 (emphasis added).
VI. Conclusion
After thorough review of the record in this matter and based on the forgoing analysis, the undersigned Magistrate Judge RECOMMENDS that the Petition for Writ of Habeas Corpus be DENIED and this action be DISMISSED WITH PREJUDICE. This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1).On or before April 28, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be filed with the Court and served on all parties no later than ten days after being served with the objections. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.