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

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U.S. Court of Appeals for the Ninth Circuit - 134 F.3d 378 (9th Cir. 1998)

Submitted Jan. 15, 1998. **


Before BROWNING, KLEINFELD, and THOMAS, Circuit Judges.


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.

 **

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3