Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

MEMORANDUM^** 

Carl McQuillion appeals the district court's dismissal of his petition for writ of habeas corpus. McQuillion argues that the determination of his date of parole by the California Board of Prison Terms¹  through the use of California's Determinative Sentencing Law ("DSL") was in violation of the ex post facto clause of the United States Constitution. He also argues that the Board's determination of his parole date through California's Indeterminate Sentencing Law ("ISL"), which had been in effect at the time of his offense in 1970, violated the due process clause. We affirm.

* "The ex post facto prohibition forbids the Congress and the states to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.' " Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325-26 (1867)). Two elements must be satisfied for a penal law to be ex post facto: (1) it must be retrospective; and (2) it must disadvantage the offender affected by it. Weaver, 450 U.S. at 29.

While the DSL was applied retroactively to McQuillion, its use did not disadvantage him. Following the procedures set forth in the California Supreme Court's opinion in In re Stanworth, 33 Cal. 3d 176, 187 Cal. Rptr. 783 (1982), the Board determined McQuillion's date of parole under both the DSL and the ISL. Because the Board concluded that McQuillion would have an earlier parole date under the new law, its use of the DSL was not a violation of the ex post facto clause.

II

McQuillion argues, however, that his parole date under the ISL does not accurately reflect the ISL as it was construed in 1970 when he committed the offense.²  The state of the law at the time of the offense is the benchmark for an ex post facto inquiry. Watson v. Estelle, 886 F.2d 1093, 1096 (9th Cir. 1989).

The problem with McQuillion's argument is that the ISL empowered the Board with virtually unfettered discretion. In addition, prior to 1975 the Board had no written guidelines for panels to consider in determining whether prisoners were suitable for parole, in establishing a period of confinement, or determining how much credit a prisoner should receive for rehabilitative efforts in prison. The Board was guided merely by very general Resolutions, policy statements and chairman's directives.

McQuillion counters by noting that the median period before parole for those convicted of first degree murder who were paroled in 1970 was eleven and one half years. Yet the same statistics demonstrate that twenty percent of those paroled in 1970 had served over nineteen years. Thus, McQuillion's claim that his period of confinement is substantially longer than those paroled at the time of his offense is flawed.

More importantly, McQuillion seems to assume that the ex post facto prohibition requires the Board to set a parole date for him that is the equivalent to those paroled in 1970. There was nothing in the law at that time, however, that restricted the Board's power to set the period of confinement. Under the ISL a conviction for first degree murder resulted in the "imposition of a sentence that was indeterminate, and until fixed, amounted to the maximum sentence for the crime in question." Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947 (1969). The punishment prescribed for McQuillion's crime was life imprisonment with the possibility of parole. It would be a perversion of the ex post facto prohibition to find that the Board, which could act with discretion in 1970, now is limited to imposing the median period of confinement of prisoners released that year.

III

McQuillion finally argues that the determination of his sentence under the ISL was a violation of due process. Although he concedes that there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence, see Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979), he argues that the practice of the Board itself created a liberty interest in an earlier parole date.

This claim is without merit. As was shown above, at the time of McQuillion's offense the Board had great discretion in setting parole dates. Although the Board did rely on some general policy statements, " [g]uidelines used to structure the exercise of discretion in making release decisions do not create a protected interest." Bauman v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir. 1985).

Nor is there any merit to McQuillion's claim that his confinement has been disproportionately long. Although he claims that he should have been released in 1980, McQuillion presents no evidence to support that assertion.³  Furthermore, fifty-seven percent of those persons committed in 1974 for first degree murder had yet to be paroled by 1989. This fact conclusively demonstrates that the length of McQuillion's confinement is not the substantial deviation that he claims.

AFFIRMED