FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his second parole consideration hearing on November 27, 2001, violated his rights to due process and equal protection. He also alleges that his Fourteenth Amendment rights were violated because the Board disregarded regulations ensuring fair suitability hearings and instead operated under a policy requiring that all murderers be found unsuitable for parole. Finally, petitioner alleges that the Board's requirement that he participate in "further programming," when he is "permanently medically disabled," violated his rights under the Americans with Disabilities Act. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On May 8, 1984, a Placer County Superior Court jury found petitioner guilty of second degree murder with the use of a firearm. (Pet. at consecutive pgs. 1, 4; Answer, Ex. A at 1-2.) On June 11, 1984, petitioner was sentenced to fifteen years to life for the second degree murder, two years for the firearm enhancement, and five years for a prior serious felony conviction, for a total of twenty-two years to life in state prison. (Id.; Pet., "Exhibits" at 178-80.)
On November 27, 2001, petitioner appeared before a Board panel for his second parole suitability hearing. (Pet., "Exhibits" at 16, 36.) At that time, petitioner had served seventeen years in prison. Petitioner waived his right to be present and to have an attorney represent him at the hearing. (Id. at 4-5.) The Board found petitioner unsuitable for parole at that time and deferred his next parole hearing for a period of four years. (Id. at 27.)
Petitioner challenged the Board's November 27, 2001 decision in a petition for a writ of habeas corpus filed in the Marin County Superior Court. (Id. at 166-67.) That petition was denied in a reasoned decision. (Id.) The Superior Court concluded that the Board's decision finding petitioner unsuitable for parole was supported by sufficient evidence and that there was no evidence to support petitioner's claim that the Board operated under a "blanket no parole policy." (Id.) Petitioner subsequently filed habeas petitions in the California Court of Appeal and the California Supreme Court, which were summarily denied. (Answer at 6.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Petitioner claims that the Board: (1) violated his rights to due process and equal protection when it failed to find him suitable for parole at his November 27, 2001 hearing; and (2) violated his rights pursuant to the Americans with Disabilities Act when it required him to participate in institutional programming. (Memorandum of Points and Authorities in Support of Petition (P&A) at 2, 8-10.) He also claims that his right to due process was violated because the Board operated under an illegal policy requiring that all murderers be found unsuitable for parole. (Id. at 9.)
The Board commenced its November 27, 2001, decision finding petitioner unsuitable for parole by stating that the panel had reviewed "all of the information received from the public" and had concluded that "the prisoner is not suitable for parole and that he would pose an unreasonable risk of danger to society and a threat to public safety if released from prison at this time." (Answer, Ex. A at 25.) The phrases "unreasonable risk of danger to society" and "a threat to public safety" are derived from § 3041(b) of the California Penal Code and § 2281(a) of Title 15 of the California Code of Regulations. Pursuant to the Penal Code provision,
[t]he panel or board shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.
Cal. Penal Code § 3041(b).
The state regulation that governs parole suitability findings for life prisoners states as follows with regard to the statutory requirement of California Penal Code § 3041(b): "Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." Cal. Code Regs. tit. 15, § 2281(a). The same regulation requires the Board to consider all relevant, reliable information available regarding the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release.
Cal. Code Regs. tit. 15, § 2281(b).
The regulation identifies circumstances that tend to show suitability or unsuitability for release. Id., § 2281(c) & (d). The following circumstances tend to show that a prisoner is suitable for release: the prisoner has no juvenile record of assaulting others or committing crimes with a potential of personal harm to victims; the prisoner has experienced reasonably stable relationships with others; the prisoner has performed acts that tend to indicate the presence of remorse or has given indications that he understands the nature and magnitude of his offense; the prisoner committed his crime as the result of significant stress in his life; the prisoner's criminal behavior resulted from having been victimized by battered women syndrome; the prisoner lacks a significant history of violent crime; the prisoner's present age reduces the probability of recidivism; the prisoner ...