FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner proceeding through counsel, filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. He challenges the April 4, 2007 decision by the Board of Parole Hearings ("Board") to deny him parole. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.*fn1
On January 13, 1994, petitioner was convicted of lewd and lascivious conduct with a minor under the age of fourteen (Cal. Penal Code § 288(a)) and annoying or molesting a child under the age of eighteen (Cal. Penal Code § 647.6). Pet. at 2. The trial court also found allegations of a prior section 288(a) conviction, and prior convictions for rape and burglary to be true. Id. at second page*fn2 6. Petitioner was sentenced to a total state prison term of sixteen years and four months to life with the possibility of parole. Id. at 2.
Petitioner's minimum parole eligibility date was August 19, 2001. Id. at second page 6. The Board denied parole at his initial suitability hearing in 2001, and again in 2003, and 2005. Id. at second page 6, Exs. A, B, C. On April 4, 2007, the Board again found petitioner unsuitable for parole. Id. at 7, Ex. D.
Petitioner challenged the Board's April 4, 2007 decision in a petition for writ of habeas corpus filed in the Alameda County Superior Court. Id. at 8. That petition was denied in a reasoned decision. Id. Ex. E. The Superior Court concluded that "[s]ome evidence supports the Board's conclusion that Petitioner currently poses an unreasonable risk of danger to society if released." Id. Ex. E at 5. Petitioner subsequently filed habeas petitions in the California Court of Appeal and the California Supreme Court, which were summarily denied. Id. at 8, Exs. F, G.
Petitioner's federal habeas petition was received for filing by this court on January 20, 2009.
In August of 1992, [petitioner] went on a picnic with J.J., age 12, Rosalia, age 9, their mother and their stepfather. Kerlett, age 7, and her parents also joined them. The four parents eventually left the children with [petitioner]. [Petitioner] drove the children to an ice cream parlor. While they were there, Kerlett looked underneath the table and saw that [petitioner]'s penis was exposed underneath his shorts. She told Rosalia who also looked and saw it. J.J. noticed it as well. [Petitioner] then took the children to a pet store where he bought goldfish for J.J. After the pet store, [petitioner] took the children to his home. [Petitioner] telephoned Kerlett's mother, telling her that the kids would be home in half an hour.
At first all three of the children went to the weight room. J.J. began using the weights. [Petitioner] left the room, and the two girls followed soon thereafter. Rosalia testified that [petitioner] turned on a "nasty movie" and said, "Look." Kerlett did not remember the video. When J.J. joined them in the living room a few seconds later he saw that a Playboy movie was being played on the video cassette recorder (VCR). He tried to turn it off. He told Rosalia and Kerlett to go outside because he didn't think they should watch the movie, and announced that they were all going to leave. J.J. pulled Rosalia outside and got into [petitioner]'s car. Kerlett soon followed. [Petitioner] did not come out. Kerlett persuaded J.J. and Rosalia to return to the house so that they could play with [petitioner]'s video camera.
While J.J. was taking his turn with the video camera, [petitioner] called to get J.J.'s attention. When J.J. turned the camera towards [petitioner] he saw that [petitioner] had pulled down his pants and underwear and was displaying his bare buttocks. J.J. described it as "mooning." A few seconds later [petitioner] called for J.J.'s attention again. This time [petitioner] had Kerlett over his knees, and her pants were down displaying her bare buttocks. Rosalia saw [petitioner] place Kerlett over his knees and pull down Kerlett's pants. Kerlett also testified that [petitioner] "grabbed me and put me over his legs and took down my pants." When J.J. saw this he put down the camera, and told both girls to come with him. Kerlett jumped up and pulled her pants up, and they went outside. J.J. said to [petitioner] "take us home or we're going to walk." On the way home in the car [petitioner] warned the children not to say anything to their parents or they wouldn't be allowed to visit again.
Applicable to Habeas Corpus Claims Pursuant to 28 U.S.C. § 2254, a person in custody under a state court judgment may apply for a writ of habeas corpus "on the ground he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Because petitioner filed his application for a writ after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the writ may not be granted with respect to any claim that was adjudicated 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.
Id. § 2254(d) (referenced herein as § 2254(d) or AEDPA); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
Under the "contrary to" clause of § 2254(d)(1), a writ may be granted if the state court "applies a rule that contradicts the governing law set forth in [Supreme Court] cases, 'or if it confronts a set of facts that are materially indistinguishable from a decision' of the Supreme Court and nevertheless arrives at a different result." Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams, 529 U.S. at 405-06). Under the "unreasonable application" clause, a writ may be granted if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413.
In determining whether the state court's decision is contrary to, or an unreasonable application of, clearly established federal law, a federal court looks to the last reasoned state court decision addressing the merits of the petitioner's claim. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Here, the last reasoned rejection of petitioner's claims was the March 20, 2008 decision of the Alameda County Superior Court affirming the Board's decision. Therefore, this court will analyze whether the March 20, 2008 reasoned state judgment was erroneous under the standard of § 2254(d).
Petitioner seeks federal habeas corpus relief from the Board's April 4, 2007 decision finding him not suitable for parole. Petitioner has appeared before the Board four times, including the April 2007 hearing, without being granted parole. At the time of his April 2007 hearing, petitioner had served 13 years of his 16 years and four months sentence. Pet'rs Reply at 15. Petitioner claims the following as grounds for habeas relief: (1) the psychological report relied upon by the Board was inaccurate and unprofessional, Pet. at 15-16; (2) the Board's denial of parole based on petitioner's alleged need for therapy, which is unavailable to petitioner while confined, violates due process, equal protection and the Eighth Amendment, id. at 14; Pet'rs P. & A. in Supp. of Pet. ("P. & A.") at 11-15; (3) petitioner's prior offenses and social instability are insufficient to warrant denial of parole, P. & A. at 18-20; and (4) the Board violated his due process rights by failing to consider all relevant information, including petitioner's medical condition and existing statutory safeguards that protect public safety. Pet. at 14; P. & A. at 16-18.
A. Due Process in the California Parole Context
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. One alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Ky. Dep't of Corr. 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 of the United States Constitution or state laws. Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, "a state's statutory scheme, if it uses mandatory language, 'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives ...