Mosley v. Oroski , 448 F. App'x 742 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 26 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RON MOSLEY, No. 08-15327
Petitioner - Appellant, D.C. No. CV-05-04260-TEH
v.
MEMORANDUM*
S. OROSKI,
Respondent - Appellee.
RON MOSLEY, No. 08-15389
Petitioner - Appellant, D.C. No. CV-05-04260-TEH
v.
S. OROSKI,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, Senior District Judge, Presiding
Argued and Submitted November 1, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submission vacated January 31, 2011
Re-submitted August 23, 2011
Before: ALARCÓN, RYMER, and M. SMITH, Circuit Judges.
Ron Mosley appeals the district court’s order denying his 28 U.S.C. § 2254petition for writ of habeas corpus. We have jurisdiction over this appeal pursuant
to 28 U.S.C. § 2253(a) and affirm.1
I
Mosley argues that the state court decision upholding the Governor’s parole
determination rested on an unreasonable application of California’s “some
evidence” requirement and an unreasonable determination of the facts in light of
the evidence. Federal habeas relief is not available for errors of state law, and the
correct application of California’s “some evidence” standard is not mandated by
the federal Due Process Clause. Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011)
(per curiam). Due process requires only that the prisoner be afforded “an
opportunity to be heard” and “provided a statement of reasons why parole was
denied.” Id. at 862.
1
We sua sponte grant Mosley’s request for a certificate of appealability. See
Hayward v. Marshall, 603 F.3d 546, 554-55 (9th Cir. 2010) (en banc), overruled
on other grounds by Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per curiam).
2
Mosley had an opportunity to be heard and to contest the evidence against
him at his parole hearing before the Board of Prison Terms, and the Governor, after
considering the same evidence that was before the Board, provided written reasons
for reversing the Board’s finding that Mosley was eligible for parole. Furthermore,
the Governor was not required, as a matter of federal due process, to hold a second
suitability hearing before reversing the Board’s decision. See Styre v. Adams, 645
F.3d 1106, 1108 (9th Cir. 2011). Therefore, even if the state court misapplied the
“some evidence” standard, Mosley’s due process rights were not violated. See
Cooke, 131 S. Ct. at 862-63; see also Pearson v. Muntz, 639 F.3d 1185, 1191 (9th
Cir. 2011).
II
The state court did not unreasonably determine that the state had complied
with the terms of the plea agreement. See 28 U.S.C. § 2254(d)(2). Mosley failed
to present a colorable claim for relief in his state habeas petition. See Earp v.
Ornoski, 431 F.3d 1158, 1167 & n.4 (9th Cir. 2005). He never alleged specific
facts about the agreement’s terms that, if true, would entitle him to relief. His
generalized assertions about his expectations under the agreement are insufficient.
See Kemp v. Ryan, 638 F.3d 1245, 1260 n.11 (9th Cir. 2011).
III
3
The state court did not unreasonably apply Garner v. Jones, 529 U.S. 244(2000), in rejecting Mosley’s ex post facto challenge to Proposition 89. See 28
U.S.C. § 2254(d)(1). At a minimum, reasonable jurists could disagree about
whether the type of procedural change enacted by Proposition 89 is addressed by
the Ex Post Facto Clause. Compare, e.g., In re Rosenkrantz, 59 P.3d 174, 200
(Cal. 2002); Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 508 (1995) (clause
should not be employed for “micromanagement of an endless array of legislative
adjustments to parole and sentencing procedures, including such innocuous
adjustments as changes to the membership of the Board of Prison Terms”), with
Collins v. Youngblood, 497 U.S. 37, 46 (1990) (“[B]y simply labeling a law
‘procedural,’ a legislature does not thereby immunize it from scrutiny under the Ex
Post Facto Clause.”); Fletcher v. Reilly, 433 F.3d 867, 877 (D.C. Cir. 2006) (same
with regards to labels such as “regulation” and “guideline” or the existence of
discretion); see also Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (standard is
whether “fairminded jurists could disagree on the correctness of the state court’s
decision” (internal quotation marks omitted)).2
AFFIRMED.
2
For these reasons, we also deny Mosley’s motion of April 6, 2011 to
remand or file supplemental briefing.
4