                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 10 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



ROBERT EVERETT JOHNSON                           No. 06-17042

            Petitioners-Appellant                D.C. No. 2:05-cv-0385-DFL-
                                                 GGH-P
  v.

CLAUDE E. FINN, Warden;                          MEMORANDUM *

            Respondent-Appellee




                 On Remand From the United States Supreme Court

Before: BERZON, BEA, and SILVERMAN, ** Circuit Judges.




       Robert E. Johnson appeals the district court's denial of his writ of habeas

corpus pursuant to 28 U.S.C. y 2254. In 1977, Johnson pleaded guilty to murder in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **    Drawn to replace the Honorable John R. Gibson, Senior United States
Circuit Judge for the Eighth Circuit, sitting by designation, who has retired.
the first degree in violation of California Penal Code y 187. He was sentenced to

25-years to life.1 In 1991, the Board of Parole Hearings ('Board') granted Johnson

parole. Governor Wilson reversed the Board's decision, thereby revoµing

Johnson's parole. Johnson filed petitions for writ of habeas corpus in both state

and federal court, which were denied.

      In 2001, the Board of Parole Hearings ('Board') again granted Johnson

parole. Governor Davis reversed the Board's decision and Johnson filed a state

habeas corpus petition, which was denied. He then filed a federal habeas corpus

petition, which was also denied. On appeal from the district court's denial,

Johnson raises five claims: (1) When Governor Davis applied California

Constitution Article V, y 8(b) to deny Johnson parole, the prohibition on ex post

facto legislation was violated; (2) Governor Davis was biased against murderers

and his decision to deny Johnson parole violated Johnson's due process rights

under the Fourteenth Amendment; (3) Governor Davis's decision to deny Johnson

parole was not supported by sufficient evidence; (4) Governor Davis's denial of

Johnson's parole breached his plea agreement; and (5) Johnson's continued



      1
          The parties disagree about the sentence. Johnson contends that he is
serving a sentence of life with the possibility of parole after seven years. This
contradiction does not affect our analysis because Johnson has already served more
than 25 years.

                                          2
incarceration is cruel and unusual punishment. The district court denied the writ.

We reversed on the basis that the Governor's reversal of the Board's grant of

parole was not supported by 'some evidence' as required under California law.

Johnson v. Finn, 394 F. App'x 419 (9th Cir. 2010). The Supreme Court granted

certiorari, vacated, and remanded for reconsideration in light of Swarthout v.

Cooµe, 131 S. Ct. 859 (2011). Cate v. Pirtle, 131 S. Ct. 2988 (2011). On remand,

we affirm the district court's denial of habeas.

      This court must defer to the state court's decision unless it 'was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or . . . was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.' 28 U.S.C. y 2254(d)(1)-(2).

      With respect to Johnson's first claim, the state court did not unreasonably

apply clearly established federal law in rejecting Johnson's ex post facto challenge

to Section 8(b). Habeas may only be granted where 'there is no possibility

fairminded jurists could disagree that the state court's decision conflicts with [the

Supreme] Court's precedents.' Harrington v. Richter, 131 S.Ct. 770, 786 (2011).

AEDPA does not require that the state court cite to, or even be aware of, Supreme

Court precedents, 'so long as neither the reasoning nor the result of the state-court


                                           3
decision contradicts them.' Early v. Pacµer, 537 U.S. 3, 8 (2003). Here, the state

court held that Johnson's ex post facto challenge failed under our decision in

Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996) ('Johnson I'). In Johnson I, we

considered the same petitioner's facial challenge to y 8(b)'s provision of an

additional level of executive review. Id. We applied Mallett v. North Carolina,

181 U.S. 589 (1901), which held that an additional level of judicial review did not

violate the ex post facto clause, to hold that the addition of a level of gubernatorial

review by y 8(b) did not violate the ex post facto clause. The state court's holding

to the same effect was not an unreasonable application of clearly established

federal law.2

      Johnson's second claim is that Governor Davis was biased against murderers

as evidenced by a No-Parole policy. The state court held that Governor Davis

made an individualized determination of all relevant factors and that his decision

was not based on a blanµet No-Parole policy. The California Supreme Court had

      2
         The state court's decision was also not an unreasonable application of
Garner v. Jones, 529 U.S. 244 (2000). Garner involved a Georgia rules change
which changed parole frequency from every three years to as infrequently as every
eight years. Id. at 247. The Supreme Court held that the relevant inquiry is
'whether the amended Georgia Rule creates a significant risµ of prolonging
respondent's incarceration.' Id. at 251. Here, rather than adding a potential five
years to a prison term before a parole eligibility, y 8(b) simply adds an additional
level of review. Thus, for the state court not to apply Garner's 'significant risµ'
test was not an unreasonable application of clearly established federal law.

                                           4
previously found in In re Rosenµrantz, 29 Cal. 4th 616, 635 (2002), that Governor

Davis did not have a No-Parole policy because the court found that Governor

Davis conducted individualized analyses of parole decisions and had once affirmed

the Board's grant of parole to a murderer. The state court's determination in this

case was not an unreasonable determination of the facts in light of the evidence

presented to the state court. 28 U.S.C. y 2254(d)(2). Therefore, Johnson's

gubernatorial bias claim also fails.

      Regarding his third claim, Johnson argues that Governor Davis's decision to

reverse the Board's parole decision was not supported by some evidence and,

therefore, violates his due process rights. In Swarthout, the Supreme Court held

that the federal Due Process clause does not require correct application of

California's 'some evidence' requirement, and that therefore habeas may not be

granted based on a state court's violation of the 'some evidence' requirement. 131

S. Ct. at 861-62 (reversing Cooµe v. Solis, 606 F.3d 1206 (9th Cir. 2010) and

overruling Pearson v. Muntz, 606 F.3d 606 (2010)). Thus, Johnson's 'some

evidence' claim fails.

      As to his fourth claim, Johnson argues that, as part of his plea agreement, he

was guaranteed parole once the Board found him suitable for parole. Because the

Governor now has the power to reverse a Board's decision, and he exercised that


                                          5
power, Johnson argues that his plea agreement has been violated. Johnson does

not, however, present any evidence that, as part of his plea agreement, he was

promised the Board would have sole discretion to grant him parole or that he

entered the plea agreement relying on the fact that the Governor could not reverse a

Board's parole decision. Thus, this claim is without merit.

      Finally, Johnson argues that his continued incarceration violates his rights

against cruel and unusual punishment under the Eighth Amendment to the United

States Constitution. Johnson was convicted of first degree murder and sentenced

to an indeterminate sentence with the possibility of parole. His sentence has not

been converted to one without the possibility of parole. Even if it had, his sentence

would still not constitute cruel and unusual punishment. See Harris v. Wright, 93

F.3d 581, 584-85 (9th Cir. 1996) (holding a life sentence without the possibility of

parole does not violate the Eighth Amendment when the crime is murder).

      Therefore, we affirm and remand to the district court with instructions to

vacate the grant of habeas corpus.

      AFFIRMED and REMANDED.




                                          6
                                                                             FILED
Johnson v. Finn, No. 06-17042                                                 FEB 10 2012

                                                                         MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, concurring:                                         U.S . CO U RT OF AP PE A LS




      I concur in the result reached by the majority. I join in the memorandum

disposition, except with regard to the ex post facto issue, as to which I reluctantly

concur in the result, for the reasons that follow:

          My reluctance stems, first, from my conviction that, in some respects,

Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996), is irreconcilably inconsistent with

Garner v. Jones, 529 U.S. 244 (2000) and so to that degree not binding upon us

under Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003). Specifically, Johnson

holds, at least alternatively, that a prisoner cannot succeed with regard to an ex post

facto claim unless he can prove to a 'mathematical certainty' and 'with assurance'

that he would have received parole under the former parole system. 92 F.3d at

968. Garner maµes clear that where ex post facto considerations are implicated,

the proper inquiry is whether the retroactive application 'created a significant risµ

of increasing his own punishment.' 529 U.S. at 256. In an appropriate case, we

should expressly disavow this aspect of Johnson.1

      The California Supreme Court, however, in In re Rosenµrantz, 29 Cal. 4th


      1
       A few cases have applied the test from Garner without expressly addressing
the continuing vitality of Johnson. See Gilman v. Schwarzenegger, 638 F.3d 1101,
1106 (9th Cir. 2011) (applying Garner's 'significant risµ' test); Brown v.
Palmateer, 379 F.3d 1089, 1095 (9th Cir. 2004) (same)).
(2002), considered at length the question whether Garner has application to a case

such as this one and concluded that it does not. Although I do not agree with

Rosenµranz's exceedingly narrow view of Garner (hence, my second level of

reluctance), I cannot say that it unreasonably applied constitutional law clearly

established by the Supreme Court, as is required to grant habeas relief under 28

U.S.C. y2254(d). There is no Supreme Court case directly on point, and at least

some Supreme Court law, namely, Mallett v. North Carolina, 181 U.S. 589 (1901),

that provides a modicum of support to the Rosenµranz analysis.

       In this case, the state Superior Court did not cite Rosenµranz on the ex post

facto issue, relying only on our Johnson decision. Still, Rosenµranz is the

definitive state decision on the impact of Garner on this species of ex post facto

cases, and it rests to some degree on the aspects of our Johnson case that do not

directly conflict with Garner. Under these circumstances, the appropriate

inference is that, as the state courts as a whole are bound by Rosenµranz, the higher

courts - which expressed no reasoning - denied the ex post facto claim on the

reasoning of that case. As that analysis cannot give rise to habeas relief, Johnson

cannot prevail.

      I note that petitioner Johnson was released from prison on December 6,

2010. He was imprisoned for 33 years on his original seven-years-to-life first

degree murder sentence. There is little doubt that at the time he pleaded guilty, his
expectation, and that of the prosecution, was that if he was a prisoner who followed

the rules and made efforts at rehabilitation, which he undoubtedly was and did, he

would have been released long, long ago. Given the overcrowding in our prisons,

see Brown v. Plata, 131 S. Ct. 1910 (2011), it maµes little sense to reincarcerate

individuals who have been succeeding outside of prison and have served for long

enough that retribution concerns have certainly been satisfied.

          I do not, of course, µnow how Johnson has been doing since released. But

assuming that there have been no problems, I very much hope that the state will

consider, in lieu of immediately reincarcerating him, holding a parole hearing--or,

if it is possible under state law, a new gubernatorial review without a further parole

hearing--that taµes into account his behavior since release and determines whether

to grant parole now.

          I concur in the memorandum disposition to the degree indicated, and in the

result.
