Cuevas v. Ayers

MEMORANDUM^**

California prisoner John C. Cuevas appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition, challenging his denial of parole. We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.

Cuevas contends California’s Indeterminate Sentencing Law violates the Ex Post Facto Clause. We review a district court’s denial of a habeas petition de novo. See Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.1999).

Cuevas’ contention is without merit because his 7-years-to-life sentence was not greater than that permitted by the law in effect when he was sentenced. As such, there was no ex post facto violation. See Morales v. California Dep’t of Corrections, 16 F.3d 1001, 1005-06 (9th Cir.1994), overruled on other grounds by 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir.1996); see also Morales, 514 U.S. at 514 (noting change in method in fixing parole release date did not violate Ex Post Facto Clause).

We further reject Cuevas’ contention that the Board of Prison Terms’ hearing violated his due process rights. A parole board’s decision satisfies due process “if some evidence supports the decision.” See Morales, 16 F.3d at 1005 (quoting Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir.1987)). In addition, “the evidence underlying the board’s decision must have some indicia of reliability.” See id. (quoting Jancsek, 833 F.2d at 1390). Reliability may be found where the prisoner was afforded an opportunity to appear before, and present evidence to, the parole board. See id. (citing Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir.1987)).

Notwithstanding that the falsehoods Cuevas complains about are relatively minor, there is nothing in the record demonstrating that they are, in fact, falsehoods. Moreover, the Board’s decision was based upon the evidence presented, and the evidence proffered by his lawyer only disputed one of the many factors that the Board relied upon. Although Cuevas declined to participate in the hearing, his lawyer was present and did present evidence, and Cuevas’ lawyer did not object to any of the government’s evidence. As there was some evidence to support the Board’s decision, there was no due process violation. See id.

AFFIRMED.

** 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.