Barker v. Board of Prison Terms

389 F. App'x 650

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2010
• Docket: 07-15100
• Status: Unpublished

Opinion

MEMORANDUM **

California state prisoner Richard A. Barker appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, 1 and we affirm.

Barker contends that the Board’s 2001 decision to deny him parole was not supported by “some evidence” and therefore violated his due process rights. The state court did not unreasonably conclude that some evidence supports the Board’s decision. See 28 U.S.C. § 2254(d); see also Hayward v. Marshall, 603 F.3d 546, 562-63, 569 (9th Cir.2010) (en banc).

Barker also contends that the Board’s decision was based on a “no parole” policy. We conclude that the California court’s rejection of this claim because Barker failed to provide any supporting evidence was not contrary to, or an unreasonable application of, clearly established Supreme Court law, and was not an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d), (e)(1).

Barker further contends that the Board’s decision rendered his sentence disproportionate in violation of the Eighth Amendment. We conclude that the California court’s rejection of this claim was also not contrary to, or an unreasonable application of, clearly established Supreme Court law, and was not an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d); see also Lockyer v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (stating that the “gross disproportionality principle reserves a constitutional violation for only the extraordinary case”).

Finally, Barker contends that the Board’s decision violates the Ex Post Fac-to Clause because of changes in California’s sentencing laws. This contention fails because “the application of the [Determinate Sentencing Law] parole-suitability guidelines to prisoners sentenced under the [Indeterminate Sentencing Law] does not disadvantage them, and therefore does not violate the federal constitutional prohibition against ex post facto laws.” Connor v. Estelle, 981 F.2d 1032, 1034 (9th Cir.1992).

Barker’s remaining contentions are unpersuasive.

We deny Barker’s motion for appointment of counsel. We construe his motions for judicial notice as citations of supplemental authorities. See Fed. R.App. P. 28(j).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1 . We certify for appeal, on our own motion, the issues of whether the 2001 decision of the California Board of Prison Terms ("Board”) to deny parole violated due process, the Eighth Amendment, and the Ex Post Facto Clause.