FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for two years at his second parole consideration hearing held on February 26, 2004, violated both state law and his federal constitutional right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
Petitioner is confined pursuant to a judgment of conviction entered in the Los Angeles County Superior Court in 1990. (Answer, Ex. 1.) A jury found petitioner guilty of three counts of kidnap for robbery, in violation of California Penal Code § 209(b), and three counts of robbery, in violation of California Penal Code § 211. It was also determined that petitioner was armed with and used a firearm in the commission of the crimes. (Id.) On March 22, 1988, petitioner was sentenced to a state prison term of seven years to life with the possibility of parole, plus two years. (Id.; Memorandum of Points and Authorities attached to Pet. (P&A) at 11; Answer, Ex. 2 at 1.)
Petitioner's initial parole consideration hearing, held on September 5, 2001, resulted in a three-year denial of parole. (P&A at 1.) Petitioner's next parole consideration hearing, which is placed at issue in the instant petition, was held on February 26, 2004. (Answer, Ex. 2.) On that date, a panel of the Board of Parole Hearings, then the Board of Prison Terms, found petitioner not suitable for parole and denied parole for two years. (Id.)
On June 22, 2004, petitioner filed an administrative appeal from the February 26, 2004 decision. (P&A at 1.) After waiting more than 120 days for a decision on his appeal, petitioner sought relief in the state courts, filing a petition for a writ of habeas corpus in the Los Angeles County Superior Court. (P&A at 1; Answer at 3.)*fn1 The Superior Court rejected petitioner's claims in a reasoned decision on the merits. (Answer, Ex. 4.)
On May 24, 2005, petitioner filed a habeas petition in the California Court of Appeal for the Second Appellate District, in which he raised the same claims that were contained in his habeas petition filed in the Los Angeles County Superior Court. (Answer, Ex. 3.) By order dated May 26, 2005, that petition was denied with citations to In re Rosenkrantz, 29 Cal. 4th 616, 667 (2002) and In re Dannenberg, 34 Cal. 4th 1061 (2005). (Id. at last page.)
On June 27, 2005, petitioner filed a "petition for review" in the California Supreme Court, raising the same claims that were contained in his petitions for a writ of habeas corpus filed with the Los Angeles County Superior Court and the California Court of Appeal.
(Answer, Ex. 5.) That petition for review was summarily denied by order filed September 7, 2005. (Id. at last page.)
The Board described the facts of petitioner's offenses, which have not changed over the years, at the February 26, 2004 parole suitability hearing, as follows:
July the 2nd, 1986, at approximately 7:30 a.m. Victor -- or Victim Victor was delivering gas to a gas station when Wilmont's co-defendant, Bell, wearing a bandana over his face and dark glasses, approached the right side of the truck. As Victor attempted to exited [sic] the driver's door Wilmont pushed the door closed keeping in him [sic] in the cab. Bell entered the cab through the passenger door, and once inside he pointed a handgun at Victor and told him back out and head west on the 210. As the tanker approached Highway 2 Victor was told to get into the back sleeper of the truck and lay down. Bell then tied Victor's hands behind his back to his belt loop, blindfolded him and stated lie there. Bell then took control of the tanker and continued west on the 210 Freeway for approximately ten to 15 minutes. He then exited the freeway and stopped, Wilmont had been following in another vehicle. And, after unloading the gasoline, Bell drove back onto the freeway, stopped leaving the tanker. Victor was able to free himself and return to the tanker. On August the 2nd, of 1986 at approximately 2:50 a.m. Victim Hastings was delivering gasoline to a gas station. Upon arrival Hastings walked to the rear of the location to collect the payment for the gasoline. As he walked back to the front he passed the dumpster. Subject one jumped out from behind the dumpster and pointed a steel revolver at his face. He was then ordered to drop the pay box, put his hands behind his head and stand up against the wall. Hastings was then ordered into the front passenger seat of the truck. Subject number two sat in the driver's seat and told him don't try to get out and don't leave the truck. Subject number two asked Hastings when his shift was over, and he replied that he was an hour late. Upon hearing this, subject two stopped the truck and waited for subject one who was following in another vehicle. Subject two then told subject one that the victim was running late on all his runs and that they should forget about stealing the truck and trailer. Subject one replied, we've gone this far. We're not stopping. Hastings was then taken out of the truck and placed in the vehicle with subject one. While subject one drove the car, subject two followed behind in the tanker truck. The truck and the tanker trailer were last -- were later recovered. Although his identity is not specified, subject two's actions are consistent with Wilmont's previous actions in the other counts.
(Answer, Ex. 2 at 10-11.) Petitioner acknowledged at the February 26, 2004, parole suitability hearing that the Board's recitation of the facts of his crimes was accurate. (Id. at 11.) He conceded that he was "the second driver, or the follow up driver, in the vehicle." (Id.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See 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)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Petitioner raises several arguments challenging the Board's February 26, 2004, decision finding him unsuitable for parole. Specifically, he claims that: (1) the "timing and gravity of the offense" were not sufficient reasons to deny him a parole date; (2) the reasons cited by the Board in finding him unsuitable for parole have no bearing on whether petitioner poses an unreasonable risk to public safety if released; and (3) the District Attorney's opinion that petitioner should not be released is not a proper ground for finding petitioner unsuitable for parole. (Pet. at 3A.) In essence, these claims allege that petitioner's right to due process was violated by the Board's unfavorable parole suitability decision. (P&A at 1-30.) Petitioner also raises several state law claims. Specifically, he argues that: (1) the Board erred in denying him parole for a two-year period; (2) the Board must "establish a primary term based on the petitioner's individual culpability and proportionate to his offense;" and (3) petitioner's parole suitability hearing did not conform to the definition of a "hearing" contained in Title 15, § 2281, of the California Court of Regulations. (Pet. at 3A.) The court will evaluate petitioner's due process and state law claims in turn below.
1. 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. A litigant 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. 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 of the United States Constitution "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin 545 U.S. 209, 221 (2005) (citations omitted). See also Board 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 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)). California's parole scheme gives rise to a cognizable liberty interest in release on parole, even for prisoners who have not already been granted a parole date. 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; see also In re Lawrence, 44 ...