FINDINGS AND 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 February 26, 2002, violated his rights to due process and equal protection, his right to effective assistance of counsel, and the Americans with Disabilities Act (ADA). Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
Petitioner is confined pursuant to a judgment of conviction entered in the Solano County Superior Court in 1988. (Pet. at 2.) A jury found petitioner guilty of one count of second degree murder, and it was determined that he used a firearm in the commission of the crime. (Id.) On May 12, 1988, petitioner was sentenced to state prison for a term of fifteen years to life with the possibility of parole. (Id.) The Superior Court stayed the two-year sentencing enhancement for the use of a firearm. (Id.) Petitioner was also given credit for time served (603 days plus 302 days, per California Penal Code § 4019). (See Answer, Ex.1 at 2.)
Petitioner's initial parole consideration hearing, held on June 1, 1999, resulted in a denial of parole. (Pet., Attach. D.) A subsequent parole consideration hearing was held on February 26, 2002. (Pet., Attach. A - entitled "Hearing Transcripts.") On that date, a two-member panel of the Board found petitioner not suitable and denied parole for two years. (Id. at 49-53.) Petitioner challenges that latter decision in this habeas action.
Petitioner filed an administrative appeal from the February 26, 2002, Board decision on May 3, 2002. (Pet., Attach. D, entitled "Administrative Appeal (CDC 1040) and Decision.") The Board's Office of Policy and Appeals denied petitioner's requests for relief, except one. In this regard, it agreed with petitioner that "the panel had insufficient evidence to conclude that he needs therapy." (Id. at 5.) In this regard, the Office of Policy and Appeals stated that,
[a] review of the prisoner's psychiatric/psychological reports reveal that the prisoner has no mental health disorder and there is no recommendations [sic] for any form of therapy. Therefore, the reference made regarding 'therapy' on page 52 of the Decision will be deleted.
On February 27, 2004, petitioner filed a habeas petition challenging the 2002 parole denial in the Solano County Superior Court. (Pet., at unnumbered 5.) By order filed March 4, 2004, the Solano County Superior Court denied the petition. (Pet., Attach. entitled "Previous Court Orders.") Petitioner next challenged the 2002 parole denial by submitting a habeas petition to the California Court of Appeal for the First Appellate District. (Id.) The state appellate court summarily denied that petition on March 24, 2004. (Id.) Petitioner then filed a habeas petition with the California Supreme Court that was summarily denied by order filed March 16, 2005. (Id.)
Petitioner's federal habeas petition challenging the 2002 parole denial was received for filing by this court on March 31, 2005.
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).*fn1 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, 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 challenges the Board's 2002 finding of parole unsuitability on seven grounds. Stated in the order presented in the petition, he claims an entitlement to habeas relief because: (1) the Board's failure to fix his term violates California Penal Code § 3041 and the Due Process Clause of the U.S. Constitution; (2) the Board held petitioner's exercise of his right not to discuss his commitment offense against him; (3) the Board's decision was arbitrary and violated his right to due process because there was no evidence to support its finding that he was an unreasonable risk of danger to society; (4) the Board has failed to establish and apply equal standards of evaluation and that the denial of parole eligibility for two years violated his constitutional rights to due process and equal protection; (5) he was denied effective assistance of counsel; (6) the Board violated his rights under the Americans with Disabilities Act; and (7) he has been denied "complete and meaningful review of his petition" in state court, in violation of the Fourteenth Amendment.
A. The Board's Decision and the Applicable Law
The Board commenced its decision denying petitioner parole by stating that the panel had reviewed "all information received at the hearing and relied on the following circumstances in concluding that the prisoner is not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." (Pet., Attachment A, entitled "2002 Parole Hearing Transcript," p. 49.) 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 governing 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 has made realistic plans for release or has developed marketable skills that can be put to use upon release; institutional activities indicate an enhanced ability to function within the law upon release. Id., § 2281(d).
The following circumstances tend to indicate unsuitability for release: the prisoner committed the offense in an especially heinous, atrocious, or cruel manner; the prisoner had a previous record of violence; the prisoner has an unstable social history; the prisoner's crime was a sadistic sexual offense; the prisoner had a lengthy history of severe mental problems related to the offense; the prisoner has engaged in serious misconduct in prison. Id., § 2281(c). Factors to consider in deciding whether the prisoner's offense was committed in an especially heinous, atrocious, or cruel manner include: multiple victims were attacked, injured, or killed in the same or separate incidents; the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; the victim was abused, defiled or mutilated during or after the offense; the offense was carried ...