The opinion of the court was delivered by: Lonny R. Suko United States District Judge
ORDER DENYING §2254 PETITION
Petitioner is in the custody of the California Department of Corrections and Rehabilitation (CDCR) pursuant to a conviction for aggravated mayhem with a firearm.*fn1 On September 11, 1989, he was sentenced to an indeterminate life term of imprisonment with the possibility of parole.*fn2 He challenges a decision of the California Board of Prison Terms (now the Board of Parole Hearings) finding him unsuitable for parole following a parole consideration hearing on March 15, 2004.*fn3
Following the denial by the Board of Parole Hearings (BPH), Petitioner sought habeas corpus relief in the California state courts. On May 6, 2005, the San Francisco County Superior Court entered a decision denying habeas relief. Petitioner appealed to the California Supreme Court which, on June 21, 2006, entered an order summarily denying the habeas petition. On November 7, 2006, Petitioner filed a 28 U.S.C. Section 2254 petition contending the BPH violated his Fourteenth Amendment due process rights by denying him parole on March 15, 2004. Petitioner and Respondent agree that Petitioner's claim can be resolved via the written record and that an evidentiary hearing is not necessary.
Federal habeas corpus relief 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 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 proceedings. 28 U.S.C. § 2254(d).
Under Section 2254(d)(1), a state court decision is "contrary to" clearly established Supreme Court precedent if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the "unreasonable application" clause of § 2254(d)(2), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412. The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). In the captioned matter, the last reasoned state court decision is the May 6, 2005 decision of the San Francisco County Superior Court. (Ex. F to Ct. Rec. 10).
The BPH is the executive agency authorized to grant parole and set release dates for prisoners serving life sentences. Cal. Penal Code § 3040. Section 3041 of the Penal Code provides prisoners sentenced in California to a state prison term that provides for the possibility of parole with a "constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause." Irons v. Carey, 479 F.3d 658, 662 (9th Cir. 2007). It has been clearly established by the United States Supreme Court "that a parole board's decision deprives a prisoner of due process with respect to this interest if the board's decision is not supported by 'some evidence in the record,'" Sass v. California Board of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006), citing Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768 (1985), or is otherwise "arbitrary." Hill, 472 U.S. at 457. The main concern in determining parole suitability is public safety. In re Dannenberg, 34 Cal.4th 1061, 1080, 1084-86, 23 Cal.Rptr.3d 417, 104 P.3d 783, cert. denied, 546 U.S. 844, 126 S.Ct. 92 (2005).
California law requires the Board "determine whether a prisoner is presently too dangerous to be deemed suitable for parole based on the 'circumstances tending to show unsuitability' and the 'circumstances tending to show suitability' set forth in Cal. Code. Regs., tit. 15 § 2402(c)-(d)." Irons, 479 F.3d at 662-63. The regulations are described as follows:
[T]he circumstances tending to show that a prisoner is unsuitable include: (1) the commitment offense, where the offense was committed in an "especially heinous, atrocious or cruel manner"; (2) the prisoner's previous record of violence; (3) "a history of unstable or tumultuous relationships with others"; (4) commission of "sadistic sexual offenses"; (5) "a lengthy history of severe mental problems related to the offense"; and (6) "serious misconduct in prison or jail." Cal. Code Regs., tit. 15 § 2402(c). Circumstances tending to show that a prisoner is suitable for parole include: (1) the prisoner has no juvenile record; (2) the prisoner has experienced reasonably stable relationships with others; (3) the prisoner has shown remorse; . . . (6) the prisoner lacks any significant history of violent crime; . . . (8) the prisoner "has made realistic plans for release or has developed marketable skills that can be put to use upon release"; (9) "[i]nstitutional activities indicate an enhanced ability to function within the law upon release." Cal Code. Regs., tit. 15 § 2402(d).
Irons, 479 F.3d at 663 n. 4.
In denying Petitioner's petition for state habeas relief, the San Francisco County Superior ...