Karl Martin, Petitioner-appellant, v. Daniel Vasquez, Warden; Linda Clarke, Warden, Respondents-appellees, 134 F.3d 378 (9th Cir. 1998)

MEMORANDUM^* 

WARE, District Judge.

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.

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.

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.

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.

AFFIRMED.