The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER ADOPTING REPORT AND RECOMMENDATION [doc. #16]; OVERRULING OBJECTIONS [doc. # and DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, appearing pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Petitioner challenges the Board of Parole Hearings' ("Board") September 13, 2005 decision denying petitioner parole. Respondent filed his response to the petition and petitioner filed a traverse. On April 27, 2007, the magistrate judge filed a Report and Recommendation ("Report") which recommended that the petition be denied. Petitioner filed an objection to the Report to which respondent filed a reply.
The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, 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." Id. 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- , 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia's holding to a habeas corpus proceeding).
Petitioner was convicted of second degree murder in the Superior Court for the State of California, County of San Diego in 1983. The court also found petitioner had used a firearm in the commission of the offense. Petitioner was sentenced to prison for 15 years to life for murder plus two years for the use of a firearm. Petitioner has served his minimum sentence of 17 years. At his September 13, 2005 parole hearing, the Board denied petitioner parole finding that he currently posed a risk to public safety. (Transcript of Proceedings at 56, Ex. D to Petition; Respondents' Lodgment 7).
Petitioner filed the present petition alleging that his federal due process rights were violated when the Board: relied solely on petitioner's commitment offense and prior non criminal prison conduct to deny him parole; failed to actually consider all the relevant reliable information; and based its decision on "some evidence" rather than "substantive evidence." (Petition at 9a).
There is no dispute that petitioner has exhausted his claims in the state court or that his petition is timely.
In her Report, the magistrate judge found that petitioner had received the process due under the United States Constitution in the context of a decision by the Board to deny petitioner parole.
Petitioner objects to the Report contending that the magistrate judge erroneously relied upon a Ninth Circuit case that is subject to Supreme Court review*fn1 ; that by having served his minimum sentence, further incarceration is in violation of his due process rights; that the Board failed to comply with state regulations concerning the use of a matrix; and that the use of the "some evidence" test rather than the "preponderance of the evidence" test should be applied.
This Court may grant habeas relief only if the California Court of Appeal*fn2 acted contrary to or unreasonably applied clearly established Supreme Court precedent, or made an unreasonable determination of facts. See 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003). A "state court decision is contrary to . . . clearly established [Supreme Court] precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [its] precedent." Id. at 73 (internal quotation marks omitted).
A due process claim is analyzed in two steps. First, the court must determine whether there is a liberty or property interest which has been interfered with by the State. Second, the court must consider whether the procedures provided are constitutionally sufficient. Sass v. ...