The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION
Petitioner Terry Campbell, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner claims his due process rights were violated because he was denied parole. The case was referred to United States Magistrate Judge Anthony J. Battaglia for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). The Magistrate Judge issued a Report and Recommendation, recommending the Petition be denied. Petitioner timely objected. Respondent did not respond. For the reasons which follow, the Report and Recommendation is ADOPTED, and the Petition is DENIED.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). Petitioner objects to the recommendation to deny the Petition and to many of the Magistrate Judge's findings in support of that recommendation. Upon performing the requisite de novo review, the court concurs with Judge Battaglia's recommendation to deny the Petition.
In 1966, Petitioner received an indeterminate sentence of life in prison after execution-style murder of a gas station attendant.*fn1 Petitioner also robbed the gas station of approximately $70. In 1967, during his incarceration for the 1966 murder, Petitioner pled guilty to first degree murder of another inmate with a zip gun. He received a concurrent indeterminate life sentence for this crime. While still incarcerated in 1973, Petitioner pled guilty to first degree murder for beating another inmate to death with a baseball bat. He received his third concurrent indeterminate life sentence at that time. He did not challenge any of the convictions or sentences he received.
Petitioner's minimum eligible parole date was September 17, 1980 and he appeared before the California Board of Prison Terms ("BPT," now known as the Board of Parole Hearings ("BPH")) several times since then. (Resp't Lodgment ("Lodgment") Ex. 8 at 3, 1.) The pending Petition challenges the denial of parole at the June 23, 2004 hearing. At that time, Petitioner had been incarcerated continuously since 1966. (Id. passim.) He was 59 years old and had support of his adoptive parents and his adult children. (Id. at 39-40, 45-47.) He had completed two bachelor's degrees, certain vocational certifications, and several self-help programs in prison. (Id. passim.) He received several letters of support, including from correctional personnel. (Id. at 45-50, 59-66.) The most recent psychological report concluded Petitioner presented "a very low risk for violence ." (Id. at 73; see also id. at 66-75.) He had a good disciplinary record since 1994, but significant and numerous violations before then. (Id. passim.) In reaching the conclusion to deny parole, the BPH found, in pertinent part:
[¶] [T]he Panel reviewed all information received from the public and relied on the following circumstances in concluding that you're not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. . . . [T]he commitment offense was the first thing that we looked at . . .. [T]he offense in 1966, the murder of Kermit Pritchard was certainly callous. This was a young man who had been at the gas station. The offense was very dispassionate. . . . He was apparently placed on his knees before he was shot in the back of the head, and the motive for the crime was a robbery, and as the inmate stated today, the ability to get away. And he lost his life over 70 some dollars in cash simply going to work. The second offense was at San Quentin, it was the killing of Ronald Roberts who was shot by a zip gun inside the cell. The prisoner has told us that Roberts threatened his life and that he was in fear and felt it was his only choice. But then following that crime[,] in 1973[,] Mr. Campbell was involved in the killing of another inmate at CMC in San Luis Obispo and that was Mr. Risenhoover who was beaten with a baseball bat and then apparently stabbed by Mr. Campbell and his crime partner, Mr. Johnson. So in fact the initial murder of Mr. Pritchard at the gas station did not deter the prison [sic] from committing other criminal offenses while incarcerated. [¶] The prisoner has an escalating pattern of criminal conduct, certainly a history of unstable and tumultuous relationships with others, and has failed previous grants of probation and parole and can't be counted upon to avoid criminality. He failed to profit from society's previous attempts to correct his criminality. Such attempts included juvenile probation, juvenile camp, CYA, county jail, adult probation, and parole, as well as incarceration in several institutions. [¶] The prisoner has programmed well. He's upgraded both educationally and vocationally and has participated in self-help. [¶] He has received serious 115 disciplinary reports and as recently as 1994 tested dirty [for methamphetamine], also in 1991 there was possession of US currency and narcotics trafficking, and in 1990 threatening to staff . . . [T]his was 10 years ago, but in the big picture, when you consider how long you've been incarcerated, that's still pretty recent bad behavior under the circumstances. [¶] This prisoner has realistic parole plans in that he has an offer of residence and support from his daughter. He also has an offer of residence in Oregon with a friend and has[,]he stated[,] two job offers. . . . [¶] The Hearing Panel notes that in response to 3042 Notices, the District Attorney of both Los Angeles and Marin County have had representatives appear today and a letter was sent by the District Attorney's Office in San Luis Obispo [sic] all opposing the finding of suitability at this time. The Los Angeles County Sheriff's Department also responded with a letter opposing the finding of suitability at this time. [¶] The Panel makes the following finding: That considering the offenses and the number of the offenses and the length of the prisoner's incarceration, having serious disciplinary violations in the last 10 years, specifically the last one in 1994 for testing dirty, that the prisoner's gains are recent and he must demonstrate an ability to maintain the gains over an extended period of time. Nevertheless, we do want to commend you, Mr. Campbell, for all of the upgrading that you've done, for completing the x-ray and the computer [certificates], for certainly upgrading substantially educationally, and for being disciplinary free since the last 115 in 1994. However, these positive aspects of his behavior do not currently outweigh the factors of unsuitability. In a separate decision, the Panel finds that it's not reasonable to expect that parole would be granted at a hearing during the following two years. [¶] The specific reasons for this finding are as follows: The offense was committed in an especially cruel manner, . . . specifically . . . the offense against Mr. Pritchard who was simply working and was ordered into the restroom and made the kneel on the floor and then shot in the back of the head for 70 dollars. Multiple victims were attacked by the inmate in separate incidents and all three were killed. And the offenses and especially the first offense [sic] was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering, and the motive for that particular . . . offense was just extremely trivial in relation to the offense. The prisoner has an extensive history of criminality and misconduct including arrests for burglary, grand theft auto, carrying a concealed weapon among many others. The prisoner has a history of unstable and tumultuous relationships with others and as recently as 1994 committed a serious disciplinary violation by testing dirty for drugs while incarcerated. [¶] The Panel recommends that the prisoner remain disciplinary free and continue to participate in self-help when available and just continue with the work that you're [sic] doing. And we also are going to order a new psych [sic] report for your next Board hearing and we're going to specifically ask . . . the psychologist to address some of the issues that were raised today regarding whether . . . there are issues of sociopathy . . . as well as some of the other questions that were raised by the District Attorney. . . . (Lodgment Ex. 8 at 98-102.)
Petitioner subsequently filed for habeas relief in state court, challenging the denial of parole. He argued (1) the BPH did not follow its own regulations when it denied parole; (2) the decision was arbitrary and capricious in that it was not supported by any evidence; and (3) the BPH relied on the unchanging factors of Petitioner's offenses and thereby changed his sentence from life with possibility of parole to life without the possibility of parole. (See Lodgment Ex. 9.) The petition was denied in the Superior Court, which issued a reasoned opinion. (See Lodgment Ex. 10.) The state court held the BPH decision was supported by some evidence and that it was not based solely on unchanging factors. (Id.) The finding that the BPH followed its regulations is implicit in the decision. (Id.) Petitions to the California Court of Appeal and California Supreme Court were summarily denied.*fn2 Petitioner then filed for habeas relief in federal court.
Under the Antiterrorism and Effective Death Penalty Act of 1996, a state prisoner's habeas corpus petition in this court "may be granted only if he demonstrates that the state court decision denying relief was 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Irons v. , 505 F.3d 846, 850 (9th Cir. 2007); 28 U.S.C. § 2254(d)(1). "The Supreme Court has held that '[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.' However, if a state statute 'uses mandatory language (shall) to create a presumption that parole release will be granted when the designated findings are made,' the statute creates a liberty interest in parole." Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006), quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 12 (1979) & Bd. of Pardons v. Allen, 482 U.S. 369, 377-78 (1987). "Under the 'clearly established' framework Greenholtz and Allen, . . . California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002).
"At the time that [Petitioner's] state habeas petition was before the state courts, the Supreme Court had clearly established that a parole board's decision deprives a prisoner of due process with respect to [his constitutionally protected liberty interest in the receipt of a parole release date], if the board's decision is not supported by some evidence in the record or is otherwise arbitrary." Irons, 505 F.3d at 851 (internal quotation marks and citations omitted); see also id. at 850. "When we assess whether a state parole board's suitability determination was supported by 'some evidence' in a habeas case, our analysis is framed by the statutes and regulations governing parole suitability determinations in the relevant state. Accordingly, . . . we must look to California law to determine the findings that are necessary to deem a prisoner unsuitable for parole, and then must review the record in order to determine whether the state court decision holding that these findings were supported by 'some evidence' in [Petitioner's] case constituted an unreasonable application of the 'some evidence' principle articulated in Superintendent v. Hill, 472 U.S. 445, 454 (1985)]. Id. at 851.
Petitioner argues that the findings necessary to deem him unsuitable for parole are stated in Section 2316, Title 15 California Code of Regulations, and not section 2402 which the BPH allegedly applied in his case. (See R&R at 7.) The state court held the applicable findings are stated in section 2281, and that the BPH followed this standard. (See Lodgment Ex. 10.) The Magistrate Judge found the unsuitability criteria of sections 2281 and 2316 were sufficiently similar for the difference to be inconsequential, "because the reasons articulated by the Board in the decision to deny Petitioner parole satisfy suitability standards set forth in each of these sections." (R&R at 8.) Petitioner objects to this finding. (See Objections at 1-3.)*fn3
Section 2316 sets forth the unsuitability criteria as follows:
In determining whether an ISL prisoner*fn4 is unsuitable for parole the hearing panel shall consider factors which affect the severity of the offense and the risk of danger to society if the prisoner were released. Examples of factors indicating the prisoner is unsuitable for parole include:
(a) A history of violent attacks.
(b) A history of forcible sexual ...