The opinion of the court was delivered by: Hon. William W Schwarzer United States District Judge
ORDER DENYING § 2254 PETITION
Angel Ochoa, a state prisoner proceeding pro se and in forma pauperis, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ochoa was convicted in 1985 of second degree murder and assault with a deadly weapon based on his no contest pleas. The Petition challenges the Board of Parole Hearings' ("BPH" or "Board") determination that Ochoa was unsuitable for parole following a subsequent parole consideration hearing on February 16, 2006. The court denies the Petition.
On August 16, 1984, Ochoa was thrown out of a bar after an altercation with a member of the Heathens Motorcycle Club. Answer, Ex. 3 at 2. About fifteen minutes later, Lowell Phillips, another member of the Heathens Motorcycle Club, escorted a patron out of the bar. Id. at 3. Ochoa was in the parking lot in his car and fired multiple shots, one of which struck Phillips in the head, killing Phillips. Id.; Answer, Ex. 2 (Transcript of February 16, 2006, Subsequent Parole Consideration Hearing) at 7. Hearing the shots, Phillip Cook ran outside and attempted to get Ochoa's license plate number. Answer, Ex. 3 at 3. Ochoa then shot Cook, striking him in the abdomen. Id.
Ochoa pled no contest to second degree murder and assault with a deadly weapon in exchange for a reduction from the original charge of first degree murder and dismissal of an attempted murder charge. In March 1985, the Santa Barbara Superior Court denied Ochoa's motion to withdraw his pleas, finding that he understood the pleas. The court sentenced Ochoa to four years for assault with a deadly weapon and fifteen years to life for second degree murder plus a two year firearm enhancement. On appeal, the California Court of Appeal affirmed the judgment and corrected it to reflect that Ochoa was to serve the four year assault term first, followed by the two year firearm enhancement and then the fifteen years to life term. Answer, Ex. 1.
Ochoa's initial parole hearing was held in February 1994. He was denied parole at multiple subsequent parole consideration hearings between 1998 and 2005. Pet. at 14--16; Traverse at 14--15. The Board again denied parole for one year at the February 16, 2006, subsequent parole consideration hearing. Ochoa challenged the February 2006 parole denial in a petition for a writ of habeas corpus in the Santa Barbara Superior Court, which the court denied on June 5, 2006, for failing to state facts on which relief could be granted. As the government concedes, see Answer ¶ 7, Ochoa cured the defects from his first petition in the habeas petition he filed in the California Court of Appeal, which was summarily denied on September 7, 2006. Ochoa filed a petition for review in the California Supreme Court, which was summarily denied on November 29, 2006. Ochoa timely filed his § 2254 Petition on January 18, 2007.*fn1
Ochoa's Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, a federal court may grant the Petition only if Ochoa demonstrates that the state court decision denying relief was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "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)(1) & (2). Where there is a state court decision on the merits but no reasoned state court decision, the federal court "conduct[s] an independent review of the record . . . to determine whether the state court clearly erred in its application of controlling federal law." Luna v. Cambra, 306 F.3d 954, 960--61, 961 n.3 (9th Cir. 2002) (internal quotation marks omitted), amended on other grounds, 311 F.3d 928 (9th Cir. 2002). Though the "postcard denial" by the California Supreme Court constitutes a decision on the merits, there is no reasoned state court decision to which to "look through" where the appellate court also summarily denied Ochoa's habeas petition and the superior court denied Ochoa's first habeas petition on procedural grounds. See id.
Ochoa's Petition asserts three due process grounds for habeas relief: (1) the Board breached Ochoa's plea agreement by denying parole and incarcerating Ochoa beyond the term of his plea; (2) the Board's denial of parole was not supported by some evidence; and (3) California's alleged "no-parole policy" rendered Ochoa's parole hearing unfair.
A. Ochoa's Plea Agreement Claim Fails
A defendant has a due process right to enforce the terms of his plea agreement. Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc); see Santobello v. New York, 404 U.S. 257, 261--62 (1971). A plea agreement is contractual in nature and interpreted under state contract law. See Ricketts v. Adamson, 483 U.S. 1, 6 n. 3 (1987); Buckley, 441 F.3d at 694--95.
Ochoa contends that after subtracting his pre-sentence, work-time, and behavioral credits, he has served his sentence and release on parole is mandatory under his plea agreement. According to Ochoa, the Board breached Ochoa's plea agreement by denying parole and continuing to incarcerate Ochoa. The continued incarceration, Ochoa argues, effectively changes his second degree plea to a first degree plea.
Ochoa's claim fails because his plea agreement was for an indeterminate sentence and neither the trial court nor prosecutor expressly promised that Ochoa would be paroled after serving twenty-one years. Though the trial court initially did state that Ochoa had "a right to parole" in response to a question from Ochoa, the trial court clarified that Ochoa may become "eligible for parole." Answer, Ex. 9 at 5--6 ("For this offense when you are sentenced to life in prison, you do have a right to parole. But you must first serve the 21 years less any good and work time credit that they give you before you can become eligible for parole.") (emphasis added). The trial court further stated, "At the end of your time in prison, you may be placed on a parole." Id.at 6 (emphasis ...