Barker v. Board of Prison Terms

FILED
NOT FOR PUBLICATION JUL 23 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RICHARD A. BARKER, No. 07-15100

Petitioner - Appellant, D.C. No. CV-03-06100-AWI

v.
MEMORANDUM *
BOARD OF PRISON TERMS; et al.,

Respondents - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding

Submitted June 29, 2010 **

Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.

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

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument and therefore denies Barker’s request. See Fed. R. App. P.
34(a)(2).
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.

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.

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§ 2254(d); see also Lockyer v. Andrade, 538 U.S. 63, 77 (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 Facto

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.

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