FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges the May 23, 2003 decision by the Board of Parole Hearings (BPH or Board) to deny him parole. He contends that the Board's refusal to set a parole date violated his rights to due process and equal protection and violated his plea agreement. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied as explained below.
On July 7, 1978, petitioner was sentenced to life in prison following his guilty plea to first degree murder and his admission that he used a firearm during the commission of the crime. (Answer, Exs. A, B.) Although neither party has provided a copy of petitioner's written plea agreement or the transcript of the guilty plea, petitioner represents that, in exchange for his plea, he was sentenced to seven-years-to-life under California's Indeterminate Sentencing Law (ISL), instead of twenty-five-years-to-life under the Determinate Sentencing Law (DSL). (Pet., Document 1*fn1 at 18-19 of 116.) This made petitioner eligible for parole after seven years. (Id.) In addition, according to petitioner, the plea agreement provided that the sentence petitioner would receive for the murder and other charges pending against him would be concurrent, and petitioner's wife would receive certain concessions in connection with criminal charges pending against her. (Id.)
Petitioner received his eleventh parole suitability hearing on May 23, 2003. (Answer, Ex. D at 8 & Ex. C.) He was represented by counsel at the hearing. (Id.) Counsel acknowledged that petitioner had timely notice of the hearing and the right to present relevant documents. (Id., Ex. C at 5.) In addition, petitioner submitted letters of support and made a personal statement. (Id., Ex. C at 11-12, 60-63.) The Board panel summarized the background facts of petitioner's crime as follows:
The murder occurred on December 3rd, 1977. And a neighbor had telephoned Ms. -- last name, T-S-O-U-G-R-A-K-I-S, asking for assistance to get into her neighbor's apartment, Richard Tyler's apartment. And he was found lying face up in a large pool of blood, the blood being under his head. And the apartment had been ransacked. There were three gunshot wounds, two in the back, one in the left upper arm. And that Mr. Tyler had died on December 3rd. It was December 5th when his body was discovered. (Id. at 13.) Petitioner admitted he committed the crime. (Id. at 13-14.) He explained he went to the victim's home to confront him about shooting at petitioner's mother on two occasions while petitioner was in prison. (Id.) When the victim recognized who petitioner was, he started to run away, but petitioner shot him three times. (Id. at 16-18.) Afterwards, petitioner ransacked the victim's apartment and took a number of his possessions. (Id. at 18-19.)
The Board panel denied parole, finding petitioner would pose an unreasonable risk of danger if released. The Board explained its decision as follows:
The Panel has reviewed all information received from the public 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. This is a one-year denial. The commitment offense was the murder of Richard Bobby Tyler... Mr. Tyler was shot to death in his home when the inmate prepared to confront him about an apparent shooting at the inmate's mother while the inmate was in prison on another charge. And in a very short period of time, the inmate -- after the confrontation, the inmate shot Mr. Swanson [sic] as he turned to run or get away from -- it says you shot Mr. Tyler as he tried to get away from Mr. Swanson, again, in his home. The motive for this crime is trivial. And there are certainly many ways to deal with a situation like that. The inmate didn't need to interject himself in it to begin with. But then after that, the inmate -- the commitment of this crime did not deter the inmate from continuing to commit other crimes because he then ransacked Mr. Tyler's apartment and took belongings of him -- or his. The inmate does have a history of criminality and had failed previous attempts to correct that criminality. Those attempts included parole due to his prior CDC term as well as juvenile placement. And he had a number of prior robberies that were similar in nature in that the inmate went to the individuals -- the victims' homes, entered their homes through false means and then attacked them and stole from them. Institutionally, he has not sufficiently participated in beneficial self-help programs. Until further progress is made, he continues to be unpredictable and a threat to others. He is to be commended for the fact that he has not had a 115 in eight years. Unfortunately, he had acquired a number of them prior to that -- 29 total during the course of his incarceration. Most of these were in the '70s and '80s and they really began to taper off in the '90s. In fact, in the '90s, he had only six of the 29. So his behavior certainly increased dramatically. And then of course since '95 having had none. In terms of education, he has continued to upgrade. He has taken college courses, has his AA. He's a paralegal. He has acquired employable skills as a videographer. He has participated recently in the computer in-house program, PLATO program, which covers a number of topics in that program. And he has received exceptional works reports previously as a clerk -- video production clerk and elsewhere as a porter. Currently unassigned due to medical issues. For all of these things, he should be commended. Also, part of the prior criminality was also an unstable social history. Early on, the inmate got involved in drugs. And at the time of the commitment offense, by his own admission, was addicted to heroin. He has used marijuana, amphetamines, heroin and cocaine amongst them. The San Francisco's District Attorney's office has responded to PC 3042 Notices and they are opposed to a finding of parole suitability. And the inmate's counselor, Castillo, wrote that he poses a moderate degree of threat to the public at this time. The inmate has appropriate parole plans. He has good support. He has a place to live and he has a place to work. As you know, the law has changed so that the granting Panel can place you in any county in California where they believe you would be most successful on parole. So it's passed that you have to worry about trying to find anything in San Francisco or the Bay Area. And the psychological report by Dr. Rouse is generally supportive of your release. Again, these positive aspects do not, in this Panel's opinion, outweigh the factors of unsuitability. The Panel makes the following findings: That the inmate needs continued participation in self-help, whether that is organized, sponsored or individual participation in self-help, in order to further develop skills that allow him to continue to deal with issues in a non-destructive manner. That means to continue to program the way that you're programming to show us that you can live within the rules of whatever society you're housed in. It happens now to be prison. But that you'll be able to continue to live by those rules when you get to the outside. And we, therefore, make the following recommendations: That you remain disciplinary-free and continue in the present course of positive program, adding to that any self-help programs that you can. Mr. Swanson, you have obviously come a long way. I appreciate your comments about your attitude, because you come off as aggressive, I guess, would be one word, but also angry. And believe me, we can understand where that comes from. But I hope that you will also understand that we don't consider this to be a confrontational hearing. We don't consider this to be an adversarial hearing. And so I hope you'll take that into consideration when you come back next year. (Id. at 64-68.)
II. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a 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). 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) (referenced herein in as "§ 2254(d)" or "AEDPA"). See Ramirez v. Castro, 365 F.3d 755, 773-75 (9th Cir. 2004) (Ninth Circuit affirmed lower court's grant of habeas relief under 28 U.S.C. § 2254 after determining that petitioner was in custody in violation of his Eighth Amendment rights and that § 2254(d) does not preclude relief); see also Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003) (Supreme Court found relief precluded under § 2254(d) and therefore did not address the merits of petitioner's Eighth Amendment claim).*fn2 Courts are not required to address the merits of a particular claim, but may simply deny a habeas application on the ground that relief is precluded by 28 U.S.C. § 2254(d). Lockyer, 538 U.S. at 71 (overruling Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir. 2000) in which the Ninth Circuit required district courts to review state court decisions for error before determining whether relief is precluded by § 2254(d)). It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
It is appropriate to look to lower court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
The last reasoned decision on petitioner's claims was from the California Supreme Court, which rejected petitioner's claims as follows:
Petition for writ of habeas corpus is DENIED. (See In re Dannenberg (2005) 34 Cal.4th 1061; In re Rosenkrantz (2002) 29 Cal.4th 616; In re Robbins (1998) 18 Cal.4th 770, 780; People v. Duvall (1995) 9 Cal.4th 464, 474; and In re Swain (1949) 34 Cal.2d 300, 304.) (Answer, Ex. D at 1.)
Petitioner claims that the Board's May 23, 2003 decision finding him unsuitable for parole violated his rights to due process and equal protection and violated his plea agreement.
(Pet. at 5.*fn3 ) For the reasons explained below, the decision of the state courts rejecting these claims is not contrary to or an unreasonable application of federal law and should not be set aside.*fn4
In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 11 (1979), the United States Supreme Court found that an inmate has "no constitutional or inherent right" to parole, even when a state establishes a system of conditional release from confinement. The Court recognized, however, that the structure of parole statutes might give rise to a liberty interest in parole that would, in turn, mean an inmate was entitled to certain procedural protections. Id. at 14-15. In Greenholtz, the Court found that the "mandatory language and the structure of the Nebraska statute at issue" created such a liberty interest. Board of Pardons v. Allen (Allen), 482 U.S. 369, 371 (1987).
In McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002), the Ninth Circuit used the Greenholtz-Allen framework to determine whether California statutes created a liberty interest in parole. The critical statute at issue in McQuillion is California Penal Code section 3041, which provides in relevant part:
(a) In the case of any prisoner sentenced pursuant to any provision of law, other than [the determinate sentencing law], the Board of Prison Terms shall meet with each such inmate during the third year of incarceration for the purposes of reviewing the inmate's file, making recommendations, and documenting activities and conduct pertinent to granting or withholding post-conviction credit. One year prior to the inmate's minimum eligible parole release date a panel consisting of at least two commissioners of the Board of Prison Terms shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5.*fn5 The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the prisoner was sentenced and other factors in mitigation or aggravation of the crime....
(b) The 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. The Ninth Circuit found that subdivision (b) was like the statutes in ...