FINDINGS AND RECOMMENDATIONS
Petitioner Thomas Eugene Saunders is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Saunders is currently serving a sentence of 15 years to life following his 1988 conviction for second degree murder in the Colusa County Superior Court. (Exhibit 1.*fn1 ) Saunders does not challenge the propriety of his conviction; rather, he challenges the Governor's 2004 reversal of the Board of Parole Hearing's decision finding him suitable for parole. The petition and exhibits, respondent's opposition, and applicable law have been carefully reviewed. For the reasons that follow, Saunders is entitled to relief on his claim because the Governor's reversal violated his due process rights.
II. FACTUAL AND PROCEDURAL BACKGROUND
Saunders killed Marvin Shuman, who was having an affair with his wife. One night, while intoxicated, Saunders went to Shuman's home. He knocked at the door but no one answered. Noticing an open window, Saunders crawled into Shuman's home. Once inside, a fight ensued. At some point, Saunders obtained a baseball bat. Saunders beat Shuman with the bat approximately 47 times and stabbed him three times. Saunders returned to his home, leaving Shuman lying on the floor. The next morning, he made an anonymous call to law enforcement reporting suspicious activity at Shuman's home. Saunders later stated that he made the call because he was not sure whether the incident was real or a dream. (Exhibit 2; Petition at 6; Answer at 2.)
Saunders pleaded guilty to one count of second degree murder and received a sentence of 15 years to life with the possibility of parole. (Exhibit 1.) His term began on March 10, 1988. (Exhibit 9b at 1.) On October 17, 2003, at his third subsequent parole suitability hearing, a panel of the Board of Prison Terms (hereinafter "Board") found him suitable for parole. (Exhibit 9b.) On March 15, 2004, Governor Schwarzenegger invoked his authority pursuant to article V, section 8, subdivision (b) of the California Constitution, reversing the grant of parole. In a written decision, the Governor indicated that his reversal was based on Saunders' commitment offense, social history, prior violent conviction, and unrealistic parole plans. (Exhibit 4.)
Saunders filed a petition for writ of habeas corpus in the Colusa County Superior Court. (Exhibit 5.) The superior court upheld the Governor's reversal, stating in a brief written decision, without any analysis, that some evidence in the record supported the reversal. (Exhibit 6.) Saunders filed subsequent petitions in the California Court of Appeals, Third District, and in the California Supreme Court. (Exhibits 7, 9a.) Both subsequent petitions were denied without written opinion. (Exhibits 8, 10.)
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under 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); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
IV. ANALYSIS OF THE PETITION
A. Due Process and Parole
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).
A protected liberty interest may arise from either the Due Process Clause or from state laws. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create a protected liberty interest in a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, where a state's statutory scheme uses mandatory language, it "'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." McQuillion, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 12 (1979)).
The Ninth Circuit has conclusively determined that California state prisoners who have been sentenced to prison with the possibility of parole have "a constitutionally protected liberty interest in the receipt of a parole release date." Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903; and Allen, 482 U.S. at 377-78 (quoting Greenholtz, 442 U.S. at 12)). Thus, the issue for consideration is whether Saunders was afforded adequate procedural protections before being deprived of his parole release date.
B. "Some Evidence" Standard
The full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. Greenholtz, 442 U.S. at 16. In addition to the Greenholtz protections, the Ninth Circuit has held that some evidence must support a parole decision. Sass, 461 F.3d at 1128-29; McQuillion, 306 F.3d at 904.
Saunders does not contest that he received notice of his 2003 parole hearing, an opportunity to appear, and copies of the decisions rendered by the Board and Governor. The only remaining issue is whether there was some evidence to support the Governor's reversal.
Under the some evidence standard, a decision cannot be "without support" or "arbitrary." McQuillion, 306 F.3d at 904 (citing Superintendent v. Hill, 472 U.S. 445, 456 (1985)). The some evidence standard is "minimally stringent," and a decision must be upheld if there is any evidence in the record that could support the conclusion reached. Powell v. Gomez, 33 F.3d at 40 (citing Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)); Toussaint v. McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986). The evidence supporting the decision must have "some indicia of reliability." Biggs, 334 F.3d at 915; see also Jancsek v. Oregon Bd. Of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987). Determining whether this standard is satisfied does not require examination of the entire record. Toussaint, 801 F.2d at 1105. The Supreme Court has specifically directed reviewing courts not to assess the credibility of witnesses or re-weigh the evidence. Hill, 472 U.S. at 455. The only relevant question is whether there is any reliable evidence in the record that could support the decision reached. See Id.; Toussaint, 801 F.2d at 1105.
Saunders has listed the factors and circumstances that allegedly show his suitability for parole. (Petition at Points and Authorities, 20-23.) This court is precluded by the some evidence standard of review from comparing and contrasting the evidence in favor of parole suitability and the evidence disfavoring parole suitability in order to decide this case. See Hill, 472 U.S. at 455. The task at hand is limited to determining whether ...