Karl Martin v. Daniel Vasquez, Warden Linda Clarke, Warden

134 F.3d 378

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Karl MARTIN, Petitioner-Appellant,
v.
Daniel VASQUEZ, Warden; Linda Clarke, Warden, Respondents-Appellees.

No. 96-15743.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 15, 1998.**

Before BROWNING, KLEINFELD, and THOMAS, Circuit Judges.

1

MEMORANDUM*

2

WARE, District Judge.

3

California state prisoner Karl Martin appeals the district court's dismissal of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995), and we affirm.

4

Martin contends that the Board of Prison Terms' failure to determine and set his release date violated his due process, equal protection, and Eighth Amendment rights, and constituted an ex post facto violation. This contention is meritless.

5

Martin is not entitled to a release date until he has been found suitable for parole. See Connor v. Estelle, 981 F.2d 1032, 1033 (9th Cir.1992) (per curiam). Although Martin has had at least a dozen parole hearings, he has not yet been found suitable for parole. Therefore, the Board's omission did not violate his due process or equal protection rights, and did not amount to an ex post facto violation. See id. at 1033-35.

6

Nor were Martin's Eighth Amendment rights violated, because a life sentence--the default term in the absence of the setting of a primary term by the Board--is not cruel and unusual punishment for first degree murder. See In re Rodriguez, 537 P.2d 384, 393 & 395 n. 18 (Cal.1975); cf. United States v. LaFleur, 971 F.2d 200, 211 (9th Cir.1991) (federal statute with mandatory life imprisonment for murder does not violate Eighth Amendment). Accordingly, the district court properly denied Martin habeas relief.

7

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

*

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