Thompson v. Newland

10 F. App'x 533

Opinion

MEMORANDUM

**

Charles W. Thompson appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition challenging the sentence imposed following his murder conviction. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

The district court granted a certificate of appealability on the issues of whether (a) the California Board of Prison Terms (“Board”) illegally “set fixed” Thompson’s term at life imprisonment, and (b) whether the process applied to Thompson’s case was improper. Thompson contends the Board: (1) failed to set a “primary term” at less than the maximum life sentence; (2) failed to set a parole release date; and (3) improperly applied the process of determining his parole eligibility. We review de novo the district court’s dismissal of a section 2254 petition. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999).

The Board’s actions did not violate Thompson’s due process rights because the fact that the Board did not set a primary term at less than the maximum life sentence did not deprive Thompson of judicial review of the constitutionality of his sentence. See Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir.1987) (concluding defendant received adequate due process based on sufficient evidence to support the Board’s decision); In re Rodriguez, 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384, 395 n. 18 (Cal.1975) (stating that if the Board does not promptly fix a primary term “the court will deem it to have been fixed at the maximum”). Furthermore, because Thompson has been deemed unsuitable for parole, the Board did not violate Thompson’s due process rights by not setting a parole date. See Cal.Code Regs. tit. 15 §§ 2401, 2402(c) (2000); see generally Connor v. Estelle, 981 F.2d 1032, 1033 (9th Cir.1992) (per curiam).

Moreover, Thompson received all the process that was due in parole eligibility proceedings. See Jancsek, 833 F.2d at 1390; see also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (holding that parole procedure satisfies due process if it “affords an opportunity to be heard, and when parole is denied, it informs the inmate in what respects he falls short of qualifying for parole... ”). The record here shows that there was “some basis in fact” supported by “some indicia of reliability” to support the Board’s denial of parole. See Jancsek, 833 F.2d at 1390. The district court, therefore, properly dismissed Thompson’s habeas petition. See id. at 1389.

AFFIRMED.¹

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1 . Thompson's motion for appointment of counsel is DENIED.