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 BPT or Board) to deny him parole at a hearing held on September 24, 2003 violated his right to due process, breached his plea agreement, and has resulted in a violation of his Eighth Amendment right to be free from cruel and unusual punishment. 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. 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 approximately October 8, 1982, petitioner pled guilty to first degree murder and admitted a firearm use allegation. (Answer, Ex. C.) On December 1, 1982, petitioner was sentenced to 27 years to life for these crimes. (Id.; Pet., Ex. A.) On June 13, 1984, petitioner was sentenced in Kings County Superior Court to five years and four months as a result of a conviction on the charge of possession of heroin for sale. (Pet., Ex. A.) This sentence imposed in 1984 was ordered to be served consecutively to petitioner's sentence of 27 years to life for the first degree murder. As a result of all of these proceedings, petitioner was sentenced to 32 years and 4 months to life in state prison. (Answer, Ex. A, Ex. B at page marked "1.")
On September 24, 2003, petitioner appeared before a Board panel for his second parole suitability hearing. (Answer, Ex. B at 1.) At that time, petitioner had served approximately 21 years in prison. Petitioner was present at the hearing and was also represented by counsel. (Id. at 2.) Counsel stipulated that petitioner's procedural rights had been met. (Id. at 5.) Petitioner made an opening statement to the Board. (Id. at 7-8.) The Board found petitioner unsuitable for parole at that time and deferred his next parole hearing for a period of two years. (Id. at 37.)
Petitioner challenged the Board's September 24, 2003 decision in a petition for writ of habeas corpus filed in the Kern County Superior Court. (Answer, Ex. C.) On April 5, 2004, that petition was denied on the grounds that petitioner had failed to "state a prima facie case for relief" and had failed to "state facts sufficient to warrant issuance of a writ of habeas corpus." (Id.) On April 19, 2004, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Fifth Appellate District. (Answer, Ex. D.) That petition was denied without prejudice for failure to exhaust administrative and superior court remedies. (Id.) Petitioner subsequently filed a petition for review in the California Supreme Court. (Answer, Ex. E.) That petition was summarily denied. (Id.)
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: (1) state law gives him a due process interest in a "presumptive parole release date;" (2) the Board failed to demonstrate that his release would pose an unreasonable risk to public safety; (3) the Board failed to "provide evidence" that he was not suitable for parole; (4) the Board improperly failed to "set a base term" for his sentence; (5) petitioner's sentence is disproportionate to the "uniform" term prescribed by state law; (6) his continued incarceration constitutes a breach of his plea agreement; and (7) he was found unsuitable for parole based on an illegal "no parole policy." (Points and Authorities attached to Petition (P&A) at 1.)
The Board commenced its September 24, 2003 decision finding petitioner unsuitable for parole by stating that the panel had reviewed "all information received from the public" and had concluded that "the prisoner is not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." (Answer, Ex. B at 33.) 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 ...