Robert Johnson v. Claude Finn

MEMORANDUM **

Robert E. Johnson appeals the district court’s denial of his writ of habeas corpus pursuant to 28 U.S.C. § 2254 . In 1977, Johnson pleaded guilty to murder in the first degree in violation of California Penal Code § 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 revoking 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, § 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…

concurring:

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 , 120 S.Ct. 1362 , 146 L.Ed.2d 236 (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 makes clear that where ex post facto considerations are implicated, the proper inquiry is whether the retroactive application “created a significant risk of increasing his own punishment.” 529 U.S. at 256 , 120 S.Ct. 1362 . In an appropriate case, we should expressly disavow this aspect of Johnson.

*685 The California Supreme Court, however, in In re Rosenkrantz, 29…

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NOT FOR PUBLICATION FEB 10 2012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,…