FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2004 denial of parole. He alleges that the action by the Board of Prison Terms (BPT or Board) violated his plea bargain and violates due process.
On September 18, 1984, petitioner was sentenced to a total term of twenty-seven-years-to-life following his guilty plea to first degree murder and his admission that he used a firearm during the commission of the crime. Answer, Ex. 1. Although neither party has provided a copy of any written plea agreement or of the transcript of the guilty plea, the probation report and the transcript of the sentencing hearing suggest that, in exchange for petitioner's plea, the prosecutor dismissed a robbery charge and its enhancements and the special circumstance allegation, which would have subjected petitioner to a term of life without the possibility of parole. Answer, Ex. 3; Petition (Pet.), Ex. B at 1 & Ex. D at 3.
At the hearing, the panel summarized the facts of the crime:
[T]his crime occurred on February 22nd of 1984 and this is when you and your partner, Billy Morgan and others, discussed committing a robbery. And so you went to a factory parking lot . . . and . . . came upon the victim in this case, a Mr. Peter Short, who was 39 years of age, who was going to his vehicle. And you accosted the victim, at which time you were in possession of a shotgun. And the victim allegedly grabbed the gun that was being held by you and it was fought over and the gun went off and the victim was hit and fatally wounded. You and your companion left in your companion's vehicle and Billy Morgan took the victim's car and briefcase. And then on February 23rd, the following day, police officers on patrol responded to a radio call concerning car strippers . . . . And upon their arrival, they saw two black males run away from a '79 Toyota. Another black male and the prisoner were noted to be in the front passenger section of the vehicle and appeared to be attempting to remove the radio from the dash. Officers ran the vehicle license and received information that the vehicle had been taken in a robbery/murder the previous day and the officers detained you on the indicated charge and your companion, Billy Morgan, was arrested the following day on the same charges.
Pet., Ex. A at 10-11. Commissioner Daly asked petitioner if that was "a true reflection of what happened that night" and petitioner agreed that it was. Pet., Ex. A at 11. However, immediately thereafter, petitioner told the panel there was no preconceived plan to commit a robbery, but rather they were just driving around aimlessly when the idea occurred to one of his crime partners. Pet., Ex. A at 12. He also denied he was attempting the strip the car the next day, explaining instead that he told his crime partners to "stay out of the man's car. Just walk away from all this and forget about it." Pet., Ex. A at 15.
A representative of the Los Angeles County District Attorney's Office was present at the parole hearing to oppose parole. He told the panel:
Despite his statements today that he knew nothing about what was going on, the facts indicate otherwise. One of his companions by the name of Kevin Goodman gave a statement to the police in which he told the police that they had been driving down several blocks, the initial intent being to get high on marijuana. They didn't have any money. There were five of them, including the inmate. Two of them were brothers, Chris, one of the defendants, and his brother, Cornell. Mr. Goodman gave a statement to the police in which he heard Chris's brother, Cornell say, man, I don't want any part of that. When he asked him what he was talking about, he said, don't you hear what the[y] . . . are talking about. He was talking about Billy and Dennis. I said, what are you talking about and Billy said, he and Dennis were talking about making some money. I asked how they were going to do that, sell the marijuana? And Billy said, they were talking about jacking somebody. The statement then goes on to indicate how the robbery went down, in which the inmate was implicated as holding the shotgun and firing the shotgun and the victim falling to the ground. In terms of what the activity that took place after, the next day, the police reports indicate that [o]fficers . . . got a radio call of car strippers. . . . Upon their arrival, the officers . . . observed two male Negroes run westbound from a 1979 Toyota. . . .He also observed another male Negro in the front passenger section of the vehicle. . . . At this time, the male Negro, later identified as Dennis Garbutt, looked up from the front seat where he had been attempting to remove the radio. . . . Detectives brought him to Newton station where . . .[h]e stated initially that he was with Chris and Billy and they had a shotgun in Chris's car with them. He said they were looking for someone to rob. . . . They saw the victim walking to his Toyota. The rest of the statement, he blames the actual shooting on Billy. . . . He said that Chris took the hood and the battery from the car and he was taking the radio, meaning himself, when the police came.
Pet., Ex. A at 49-51 (verbatim transcription). Petitioner, represented by counsel, did not object to or take issue with the Deputy District Attorney's account of the crime. Id. at 52-55.
The panel denied parole, finding that petitioner would pose an unreasonable risk of danger if released:
The offense was carried out in a very calculated manner, in that when the prisoner and his crime partners saw the victim, they chose to go over and rob him, holding him at gunpoint. The motive for the crime was out of proportion in relation to the offense, in that this appeared to be a robbery just to get some money, which ended up costing the victim his life. The murder of the victim did not deter the prisoner from later committing another criminal offense, when the next night he is caught trying to burglarize a vehicle and take a stereo out of the car. . . . The prisoner, it is noted, does not have a history of criminal behavior. He has, although, programmed in a very limited manner since he has been incarcerated and he has not sufficiently participated in beneficial self-help or therapy programs. And it is noted that he's had a 128 write-up since his last hearing. And the total disciplines that he's had since incarceration total five 115s, three of them for noncompliance of grooming standards, one for horseplay and one for working in the canteen. The psychiatric, psychological report, dated 11/14 of '03, by Dr. John T. Rouse needs to be updated. And we're requesting that Dr. Rouse take a look at the police and Probation Officer's report and reconcile that to the statements that have been made by the inmate with regard to his participation and knowledge of what was going on that evening. Parole plans are realistic and are sufficient for if he remains in California. However, there are no parole plans that have been settled if the inmate is returned to Belize, where he has an INS hold on him to be deported. . . .Other information that we considered was the counselor's report that was prepared by J.A. Robinson, who feels that the prisoner would pose a moderate degree of threat if released to the public at this time. The Panel finds that the prisoner's gains are recent and he must demonstrate an ability to maintain gains over an extended period of time. And in view of the prisoner's lack of program participation, there is no indication that the prisoner would behave differently if paroled. Nevertheless, the prisoner should be commended for the fact that he does have his GED, which he received in 1995, has vocational Welding, and has vocational Landscaping training, although it's noted there is no finalized certificate on that. He's been working on the In-grounds Crew with above average work reports and has sporadically attended NA and AA. And he had completed two classes. One is Thinking Skills for Offense Prevention and Anger Management. However, these positive aspects of his behavior do not outweigh the factors of unsuitability.
Pet., Ex. A at 57-60. The panel relied on the same factors, slightly recast, to find that it was not reasonable to expect that parole would be granted in the following three years. Id. at 60-62.
II. Standards Under The AEDPA
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Federal habeas corpus relief also 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 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.
28 U.S.C. § 2254(d) (referenced herein in as "§ 2254(d)" or "AEDPA"). See Ramirez v. Castro, 365 F.3d 755, 773-75 (9th Cir. 2004) (Ninth Circuit affirmed lower court's grant of habeas relief under 28 U.S.C. § 2254 after determining that petitioner was in custody in violation of his Eighth Amendment rights and that § 2254(d) does not preclude relief); see also Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003) (Supreme Court found relief precluded under § 2254(d) and therefore did not address the merits of petitioner's Eighth Amendment claim).*fn2 Courts are not required to address the merits of a particular claim, but may simply deny a habeas application on the ground that relief is precluded by 28 U.S.C. § 2254(d). Lockyer, 538 U.S. at 71 (overruling Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir. 2000) in which the Ninth Circuit required district courts to review state court decisions for error before determining whether relief is precluded by § 2254(d)). It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
It is appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999).
In this case, the last reasoned decision was from the Court of Appeal, which rejected petitioner's claims:
The petition is denied for failure to show entitlement to the relief requested under In re Dannenberg (2005) 34 Cal.4th 1061, 1078-1100, and for failure to provide a complete record. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)
Pet., Ex. O. However, the last reasoned decision addressing petitioner's claimed violation of his plea bargain was from the Superior Court:
The Court rejects Petitioner's argument that the Board's denial of parole violated Petitioner's plea agreement made with the District Attorney's office. Petitioner entered into a plea agreement, to which the Board was not a party, that provided for an indeterminate sentence with a minimum of twenty-seven years and a maximum of life. Therefore, Petitioner's argument is without merit.
Pet., Ex. N (emphases in original).
III. Violation Of The Plea Bargain
When a criminal defendant pleads guilty in exchange for certain promised actions, his right to due process of law entitles him to fulfillment of those promises. Santobello v. New York, 404 U.S. 257, 262 (1971). In this case, petitioner alleges that his plea of guilty to murder was premised upon a dismissal of the 'special circumstances' allegations so that he "would gain the benefit of parole." Pet. at 18:19-21.
Petitioner has presented nothing showing that the nature of his guilty plea or that any bargain leading to the plea included a promise that he would be paroled. The sentencing transcript shows only that the prosecutor moved to dismiss the special circumstance allegation at the conclusion of the proceeding "in view of the plea and the understanding." Pet., Ex. D at 5. In addition, in considering petitioner's request to withdraw his guilty plea, the court said that "the People indicated that they would strike the special circumstances which would prevent the life in prison without the possibility of parole or the death penalty" and in sentencing petitioner, the court commented that petitioner "will be on parole . . . upon his release from state prison. . . ." Id. at 3, 5. None of this reflects a promise that petitioner would be paroled at any time short of the maximum term of life. The prosecutor's agreement to strike the special circumstance gave petitioner a possibility, not a guarantee, of parole. Compare Brown v. Poole, 337 F.3d 1155, 1160 (9th Cir. 2003) (during plea colloquy, prosecutor said that defendant had a right to release after serving half her term if she was disciplinary-free).
Petitioner also argues that the legal effect of dismissing the robbery charges and the special circumstance allegation is that the parole board would be forbidden to use these facts in determining petitioner's suitability for parole and that the prosecutor specifically breached the agreement by relying on the facts during the parole hearing. Pet. at 19-20. Petitioner relies on People v. Harvey, 25 Cal.3d 754 (1979), which holds that a sentencing court may not rely on charges dismissed as part of a plea bargain absent a defendant's waiver. Once again, petitioner has not presented a copy of the plea transcript, so he has not established the exact nature of the promises made as part of his plea agreement. Compare United States v. Anderson, 970 F.2d 602, 608 (9th Cir. 1992), as amended on denial of rehearing, 990 F.2d 1163 (9th Cir. 1993) (factual stipulations as part of plea agreement may prevent government from presenting additional facts to the parole board); see also People v. McElwee, 128 Cal.App.4th 1348, 1353 (2005) (Harvey did not constrain prosecutor ...