                                                                             FILED
                           NOT FOR PUBLICATION                                DEC 03 2010

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




                            FOR THE NINTH CIRCUIT



CHESTER JOHNSON,                                 No. 04-16712

              Petitioner - Appellant,            D.C. No. CV-97-00558-
                                                 WBS/DAD
  v.

ANTHONY NEWLAND; ATTORNEY                        MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA; TOM L. CAREY,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                            Argued January 14, 2008
                          Resubmitted December 1, 2010
                            San Francisco, California

Before: WALLACE, HUG and SCHROEDER, Circuit Judges.

       California state prisoner Chester Johnson (“petitioner”) appeals from the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253. We review de novo the denial of a habeas


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition. Tanner v. McDaniel, 493 F.3d 1135, 1139 (9th Cir. 2007). The

Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs our review.

Woodford v. Garceau, 538 U.S. 202, 204, 207 (2003). Under AEDPA, we grant

relief if the state court decision was “contrary to, or involved an unreasonable

application of, clearly established” Supreme Court law, or was “an unreasonable

determination of the facts in light of the evidence.” 28 U.S.C. § 2254(d). If a state

court adjudicates the merits but does not provide its reasoning, we conduct an

independent review of the record. Greene v. Lambert, 288 F.3d 1081, 1088-89

(9th Cir. 2002). We affirm.

      Petitioner contends that the Board’s 1995 decision to deny him parole

violated his due process rights because it was not supported by “some evidence.”

A denial of parole to a prisoner must be supported by “some evidence” of the

prisoner’s threat to public safety. Hayward v. Marshall, 603 F.3d 546, 563 (9th

Cir. 2010) (en banc). “Some evidence” of dangerousness includes the nature of the

offense, a record of violence, an unstable social history or history of mental

problems, and misconduct in jail. Pirtle v. Cal. Bd. of Prison Terms, 611 F.3d

1015, 1021 (9th Cir. 2010). The committed offense alone does not show

dangerousness unless the record also shows something in the petitioner’s pre- or




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post-incarceration history, his current demeanor, or his mental state which allows

for an inference of current dangerousness. Id.

      The state court decision upholding the Board’s denial of petitioner’s parole

was not contrary to, or an unreasonable application of, Supreme Court precedent.

Petitioner was convicted of two first degree murders. He engaged in an extended

crime spree which involved multiple victims in separate incidents of violence. The

aggravated nature of the crimes supports a denial. Moreover, petitioner’s juvenile

record, history of violence, and misconduct while in jail support a denial. See

Pirtle, 611 F.3d at 1021.

      Petitioner argues that the Board violated his due process rights by denying

his request to have three non-family members testify at his 1995 recission hearing.

“The prisoner’s witnesses shall be called unless the Board has specific reasons to

deny his request and advises the prisoner of those reasons in writing.” In re

Johnson, 35 Cal. App. 4th 160, 170 (Cal. App. 1995) (citations and internal

quotation marks omitted). Here, the Board denied the request because the

witnesses would have provided cumulative evidence and the witnesses had already

provided letters to the Board. The Board may deny a request for dispositional

witnesses if the evidence would be irrelevant or cumulative and the testimony may

be presented in written form. See Cal. Admin. Code tit. 15, § 2668(b). Thus, the


                                          3
state court’s holding that there was no due process violation was not contrary to, or

an unreasonable application of, Supreme Court precedent.

      Petitioner contends that application of Cal. Penal Code § 3041.1 violated the

ex post facto clause. Under § 3041.1, the Governor may request review of a parole

release decision up to 90 days before the release date and once the request is made

the review is mandatory. Here, § 3041.1 does not violate the ex post facto clause

because it does not punish as a crime an act previously committed which was not a

crime, impose a greater penalty for a crime after it was committed, or deprive one

of a defense that was available at the time of the act. See Collins v. Youngblood,

497 U.S. 37, 52 (1990); Johnson v. Gomez, 92 F.3d 964, 967-68 (9th Cir. 1996).

Moreover, the Board exercised its inherent authority to review the parole decision

independent of § 3041.1 because the Governor’s request was untimely. Because

no evidence shows a violation, the state court’s holding was not contrary to, or an

unreasonable application of, Supreme Court precedent.

      Petitioner contends that he was denied due process when he was returned to

prison without a parole revocation hearing. Because petitioner filed this claim in

January 2000, and under AEDPA the limitations period to file the claim expired on

April 24, 1997, this claim is time-barred. See 28 U.S.C. § 2244(d); Jenkins v.




                                          4
Johnson, 330 F.3d 1146, 1149 (9th Cir. 2003), overruled on other grounds, Pace v.

DiGualielmo, 544 U.S. 408 (2005).

      AFFIRMED.




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