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, primarily challenging the denial of parole in 2004. Pending before the court are petitioner's petition (Doc. 1), respondents' answer (Docs. 14 and 15), and the parties' supplemental briefs addressing the applicability of Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), rehearing en banc granted, 527 F.3d 797 (9th Cir. 2008) (Docs. 17 and 18).
Petitioner pleaded guilty to second degree murder and was sentenced on September 23, 1980, to a life term in state prison with the possibility of parole.*fn1 According to petitioner, as of the date he filed the instant federal petition on February 16, 2006, he had appeared at nine parole suitability hearings. He currently challenges the denial of parole in September 2004.*fn2 In it's decision, the Board of Prison Terms ("Board") denied parole for one year citing the following: (1) the facts of petitioner's commitment offense; (2) prior criminal and social history; (3) failure to upgrade vocationally while in prison; and (4) unsuitable parole plans. As to vocation and parole plans, the Board stated:
. . .And he's been in over 20 years, but I see no vocation, even though he may have marketable skills. This is something that the Board is concerned about for the reasons that I'll get into later. Parole plans. The Prisoner needs to firm up his parole plans. . . . He doesn't have money. He doesn't have food. So he's burglarizing. And if he doesn't have a good place to go to, the letters were vague on that, if he doesn't have a good job offer. I'm very familiar with the [International Electrical Workers] program. And what they do is they make you an apprentice and then other people hire you. And if they don't hire you, you don't have a job. And you may be the best electrician in the world, but if nobody wants to hire you, you don't have a job. It's not employment by IEW. What we're concerned about is if you get out there again and you're unsuccessful in a job, same thing might happen. That's why we suggest even a vocation in -- they have forklift operators. They have janitorial. Many, many things. And you've been here 20 years and you don't have those things. The Panel feels that parole plans need to be firmed up.
Petitioner filed a petition for a writ of habeas corpus in the San Bernardino County Superior Court challenging the September 2004 denial of parole. As to that petition, the state court identified six claims:
1. [Petitioner's] contract with the State of California has been violated . . . [¶] [because petitioner] entered into a plea bargain agreement for a sentence of fifteen (15) years to life but instead received a sentence of twenty-five (25) years to life, or, life without the possibility of parole;
2. [Petitioner] has served past the maximum possible base term of twenty-one years as set forth in the "matrix" of base terms for second degree murder; . . . [¶] [because] the Board of Prison Terms failed to conduct an Extended Term Hearing with[in] 120 days of Petitioner's reception it must be concluded that the murder he committed was not "particularly" egregious and so he should be release after twenty-one (21) years;
3. [Petitioner] has been "defrauded" by the State of California since he has not been released after twenty-one (21) years; . . . [¶] [petitioner] has received no benefit from his sentence so his plea bargain agreement has been violated;
4. [Petitioner] is suffering "cruel and unusual" punishment by having to serve more than twenty-one years . . . in prison, since his sentence is disproportionate to the offense. . . .;
5. [Petitioner's] rights to due process and equal protection under the law are being violated; and
6. [Petitioner's] right to liberty requires his release; . . . [¶] [petitioner] contends that he has been denied parole numerous times because of the nature of his offense, which is unreasonable since the nature of his offense will not change. . . .
As to these claims, the state court held:
. . . There is no merit to Petitioner's first contention. [¶] On August 22, 1980, Petitioner pled guilty to second degree murder. In exchange for such a plea, four other felony charges were dismissed. Pursuant to the law in effect at that time, his sentence to state prison was not fifteen (15) years to life, it was "indeterminate" which means until he is found suitable for parole.
. . .There is no merit to Petitioner's second contention. A person sentenced to life in prison has no right to release at any specified date, or ever during their lifetime. (emphasis in original). That is what a "life sentence" means. Persons who kill other persons for a handful of change cannot reasonably expect that they will be returned to society whenever they think it is proper. [¶] The "matrix" Petitioner refers to does not guarantee parole on a certain date; it only directs a time for parole consideration.
. . . Petitioner has not been defrauded by the State of California or anyone else.
. . . A life sentence for a second degree murder is not "cruel and unusual punishment."
. . . Petitioner's "due process" and "equal protection" rights have not been violated.
. . . Petitioner has no "right" to release. He has a "right" to be considered for release, that's all. [¶] Despite Petitioner's frustration with the decision to deny him parole he has not shown that ...