The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Juan Moran, a California state prisoner proceeding pro se, pursuant to 28 USC § 2254, challenges a decision by the Board of Parole Hearings ("Board") finding him unsuitable for parole. Per order filed on June 20, 2008, the court (Snyder, MJ) found petitioner's claims cognizable and ordered respondent to show cause. Respondent has filed an answer addressing the merits of the petition, and petitioner has filed a traverse. Having reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled to relief based on the claims presented and denies the petition.
On June 27, 1988, petitioner was convicted in Los Angeles County superior court of second-degree murder. He was sentenced to fifteen years-to-life. In February 2006, the Board found petitioner unsuitable for parole on the grounds that he would pose an unreasonable risk of danger to society and a threat to public safety if released at that time. The Board based its decision on the commitment offense. Parole Hearing Transcript ("PHT") at 45.
The facts of the commitment offense on which the Board relied are as follows. On August 17, 1989, petitioner along with two members of the Pierce Street gang, attacked Melvin Reeves as he was entering his apartment building. The gang was notorious for beating and robbing victims. Petitioner joined two gang members in beating the victim. Witnesses saw petitioner throw a shopping cart on Reeves. After several minutes of vicious beating, Reeves stopped moving. Petitioner and the gang members left the scene, only to return with twelve friends to continue beating Reeves while joking, eating and drinking beverages. The assault had a carnival-like atmosphere. The assailants removed Reeves' clothing. Reeves died without regaining consciousness. The coroner's report noted that approximately 25 to 30 abrasions and contusions were on the victim's body. PHT at 5-6.
At the parole hearing, the Board reviewed petitioner's record, including the circumstances of the commitment offense, his psychological report, his behavior while in prison, the opinions of law enforcement and his parole plans. Although petitioner originally denied returning to the crime scene, he has since admitted doing so, but maintains that he did not participate in the beating upon his return. Id at 6-7. The Board also noted that petitioner's psychological report states that petitioner has no psychological illness and is less dangerous than the average citizen in the community. Id at 33-35. The Board observed that petitioner received several "write-ups" while in custody of the Youth Authority, including four disciplinary infractions for group disturbance, a negligent act, contraband and gang activity. Id at 35. At adult corrections, petitioner was cited for possessing a tattoo device in 1995 and for tattooing another inmate in 1997. Id. He was also cited for an unauthorized absence from work in 1995, for "unauthorized areas" in 1996 and for possession of contraband in 1999. Id at 36-37. The Board also reviewed petitioner's participation in numerous self-help and vocational programs in prison, including Alcoholics Anonymous, automotive repair, machine shop, masonry, mill and cabinet program, office technology, group psychotherapy, anger management and parenting classes. Id at 27-33. The Board further reviewed a letter from the Los Angeles Police Department stating that the crime was especially heinous and its motive was trivial in relation to the offense. The police department recommended that parole be denied. Id at 22. Finally, the Board reviewed petitioner's plans for parole, noting that petitioner has several job offers, as well as arrangements for places to live. Id at 13-22.
After a full hearing, at which all of the above factors were considered, the Board found petitioner unsuitable for parole on the grounds that he "would pose an unreasonable risk of danger to society or threat to public safety if released from prison." PHT at 45. In response to the Board's decision, petitioner filed state habeas petitions, all later denied, in the Los Angeles County superior court, California Court Appeal and the Supreme Court of California. On May 16, 2008, petitioner filed the instant federal petition. As grounds for federal habeas relief, petitioner alleges that (1) the Board's finding of unsuitability based on unchanging factors relating to the commitment offense violated his right to due process; (2) the Board failed to make an individualized assessment of all factors tending to demonstrate petitioner's suitability for parole; and (3) the Board's decision, rendered by a partial fact-finder, was arbitrary and capricious and violated petitioner's due process rights.
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 USC § 2254(a); Rose v Hodges, 423 US 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court 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 USC § 2254(d); Williams v Taylor, 529 US 362, 412--13 (2000). A federal court must presume the correctness of the state court's factual findings. 28 USC § 2254(e)(1). Habeas relief is warranted only if the constitutional error at issue had a "'substantial and injurious effect or influence in determining the jury's verdict.'" Penry v Johnson, 532 US 782, 796 (2001).
The state court decision implicated by 2254(d) is the "last reasoned decision" of the state court. See Ylst v Nunnemaker, 501 US 797, 803--04 (1991); Barker v Fleming, 423 F3d 1085, 1091--92 (9th Cir 2005). When there is no reasoned opinion from the highest state court to have considered the petitioner's claims, the district court looks to the last reasoned state court opinion, which, in this case, is the Los Angeles County superior court's opinion denying the state petition for a writ of habeas corpus. See Nunnemaker, 501 US at 801--06; Shackleford v Hubbard, 234 F3d 1072, 1079 n2 (9th Cir 2000).
Petitioner seeks federal habeas corpus relief from the Board's February 8, 2006, decision finding him unsuitable for parole on the ground that the decision does not comport with due process. Petitioner claims that the Board improperly based ...