The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the September 18, 2002, denial of parole. Pending before the court are petitioner's pro se petition for a writ of habeas corpus (Doc. 1), respondents' answer (Doc. 25), and petitioner's reply (Doc. 26). Also before the court is a supplemental brief (Doc. 36) addressing the applicability of Hayward v. Marshall, 512 F.3d 536 (9th Cir. Jan. 3, 2008), and respondents' request for a stay (Doc. 32) pending issuance of the mandate in Hayward.*fn1
The Board of Prison Terms (now the Board of Parole Hearings, the "Board") recited the following underlying facts concerning petitioner's commitment offense, and petitioner does not allege that these facts are incorrect:
On May the 12th, 1981, at approximately 1:45, police officers were dispatched to -- (location omitted in original). Upon arrival they observed the defendant Alley standing on the sidewalk next to a motorcycle holding a gun in his hand. They ordered the prisoner to place his gun down and he complied. The prisoner then spontaneously said, "I came home and saw her with a gun. She pointed it at me and was going to shoot me. I had to protect myself and shoot her." The officer entered the residence, observed Belynda Hicks . . . lying on her back across the couch with what appeared to be a gunshot wound to her chest and knees. The ambulance was summoned and she was pronounced dead at 1:40 a.m. A .38 caliber Smith and Wesson was found underneath the body of the victim. The victim was the girlfriend of the prisoner. The prisoner was placed under arrest and taken into custody without incident. The San Francisco Medical Examiner Coroner determined the cause of the death to be multiple gunshot wounds.
During the course of the 2002 parole hearing, the presiding commissioner asked petitioner what had occurred to cause Hicks to come after petitioner with a gun and petitioner offered the following:
For many years I have often thought about that, and a lot of it I have to contribute to my behavior. . . . [¶] And what I mean by my behavior is the type of lifestyle I was living. I was living where I felt I had to have more than one woman. . . . [¶] I was engaged in a relationship with Gail Hampton. We had broke up and I started shacking up with Belynda Hicks. And I was still in between two relationships, seeing both women. However, my supposed to be my best partner, who I thought was my partner, brought these two women together. And that's how they come to be in Mrs. Hicks' home the morning when I got off of work. . . . [¶] And she was angry because I was messing with her and messing with Gail. I guess they must have talked about it. And the next thing I know a gun gets pulled and I reacted.
Petitioner stated that, after Hicks pulled the gun, he went outside to talk to Hampton, but she was gone. Petitioner added:
I came back up in the house not with the intent to kill her. I came back up in the house with the intent to pack myself to leave since all my property was in the house. When I got back up into the house she pulled the gun on me again. So what was I supposed to do? I tried to get the gun from her. I even rushed her and tried to get the gun. My hand slipped out of her hand. And when I backed up I seen the gun coming around at me again. I said drop the gun, drop the gun, drop the gun. The gun was still coming. And what was the only time when I pulled my gun, only when I seen that my life was in danger. I wasn't intending to kill her.
According to petitioner, he had a gun on his person at the time because he was a security guard and had just returned from work.
Petitioner was convicted of first degree murder following a jury trial. In March 1982 petitioner was sentenced to a total of 27 years to life in state prison.*fn2 On September 18, 2002, petitioner appeared before the Board for a subsequent parole determination hearing. The record does not reflect how many prior parole suitability hearings petitioner had. According to petitioner, his minimum eligible parole release date was initially determined to be April 10, 1995, but was subsequently re-calculated to be May 8, 1997.*fn3
After the Board denied parole, petitioner filed a number of administrative appeals and then a habeas corpus petition in the San Francisco County Superior Court. The Superior Court indicated that petitioner raised the following four claims:
1. [Petitioner] did not receive an indeterminate sentence and the [California Department of Corrections] incorrectly classifies him as a life prisoner;
2. The [California Department of Corrections] failed to properly apply credits under [California] Penal Code Section 2930 et. seq. and reduce Petitioner's minimum term of imprisonment in violation of his due process and equal protection rights;
3. The Board of Prison Terms has no legal authority or jurisdiction to deny Petitioner's parole and therefore is holding him beyond his minimum term in violation of his due process rights; and
4. Petitioner . . . objects to a 1979 internal memorandum from the Office of the Attorney General. In relevant part, this memo discusses that life prisoners sentenced under [California] Penal Code § 190 after its amendment by Proposition 7 in 1978 are not entitled to . . . work credits. Petitioner alleges that this interpretation of § 190 is contrary to its express language and violates his due process rights."
The Superior Court denied relief in a reasoned decision issued on June 11, 2004. Both the California Court of Appeal and California Supreme Court denied subsequent habeas petitions without comment or citation.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...