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. He was convicted in 1991 on charges of second degree murder and sentenced to nineteen years-to-life in state prison with the possibility of parole in the Orange County Superior Court. In the petition now pending before this court, petitioner alleges that the March 13, 2002 decision of the California Board of Parole Terms (hereinafter the "Board")*fn1 to deny him parole at his first parole hearing, violated California law and his due process rights under the Fourteenth Amendment to the United States Constitution. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND
Petitioner was deemed unsuitable for parole by the Board following a March 13, 2002 initial parole consideration hearing. Petitioner's administrative appeal from the adverse determination was denied on February 11, 2003. Resp't's Ex. 4 at 1:19-21.*fn2
In rendering its March 13, 2002 decision, the Board relied on the following reasons for denying petitioner parole:
The Panel has reviewed all information received from the public and relied on the following circumstances in concluding 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 at this time. Number one is the committing offense. The offense was carried out in an especially cruel and callous manner. The offense was carried out in a dispassionate, calculated manner...the offense was carried out in a manner, which demonstrates an exceptionally callous disregard for human suffering. The motive for the crime was inexplicable or very trivial in relationship to the offense. These conclusions are drawn from the Statement of Facts wherein the prisoner was arguing with his wife. He was hitting his wife and then the three men [including Mr. Brown and Mr. Carpenter] yelled at [petitioner] from across the street to stop hitting his wife, Christine. The [petitioner] told them to mind their own business and ran off.
[S]he [Christine] proceeded to go with [Mr. Brown and Mr Carpenter] to a liquor store and then back to Mr. Brown's apartment.
Later Mr. Brown and Mr. Carpenter argued in Brown's apartment. Brown left the apartment. They went down the stairway. The [petitioner] appeared with a shotgun and a second man appeared, a Mr. Owens who was carrying a baseball bat and was with the [petitioner]. The [petitioner] ordered the other men to stand by the fence. The [petitioner] shot the victim and killed him.
Let's see, the previous record, the [petitioner] has an escalating pattern of criminal conduct in terms of petty theft. He was on probation in '77 for that as well as a burglary charge in '79. The prisoner has a history of unstable tumultuous relationships with others in terms of substance abuse, marijuana around 14, 13 or 14 and then later on PCP. He's failed previous grants of probation and cannot be counted upon to avoid criminality. He failed to profit from society's previous attempts to correct his criminality. Such attempts included probation, as mentioned, a drug diversion program, and a group home.
Institutional behavior, the prisoner has programmed in a limited manner while incarcerated. He's not sufficiently participated in beneficial self-help and therapy programs at this time.
Parole plans, the prisoner has viable parole plans at this time. 3042 Notices, the Hearing Panel notes that responses to PC 3042 Notices indicate an opposition to a finding of parole suitability specifically [sic] two different entities. One, the District Attorney's office of Orange County who had a representative present and was here in opposition to a finding of suitability at this time as well as the Buena Vista [sic] PD, the police department, which was the law enforcement agency which investigated the particular case . . . as well as the victim's next of kin who was present as well today in opposition to a finding of suitability at this time.
Now remarks to the prisoner, the Panel makes the following findings: That the prisoner needs therapy in order to face, discuss, understand, and cope with stress in a nondestructive manner to better acquaint himself with the causative factors as well as his culpability in this particular crime. Until progress is made the prisoner continues to be unpredictable and a threat to others . . . Nevertheless, you should be commended, sir, for remaining disciplinary free since incarceration . . . Although these positive aspects of your behavior don't outweigh your unsuitability at this time. This is a three-year denial, sir.
Resp't's Ex. 2 at 70-71, 9 and 71-73.
Petitioner filed a habeas petition in the Orange County Superior Court, which was denied in a reasoned decision on June 23, 2003. Petitioner filed subsequent habeas petitions in the California Court of Appeals and the California Supreme Court, both of which were summarily denied.*fn3 Answer at 3. Petitioner's federal habeas petition was received for filing by this court on December 8, 2004.
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); ...