FINDINGS AND RECOMMENDATIONS
Petitioner John Burnight is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the June 14, 2002, decision by the Board of Prison Terms (hereinafter Board) finding him unsuitable for parole.
Petitioner makes the following claims*fn1
A. The Board violated statutory authority;
B. The Board's standard was unconstitutionally vague;
C. The Board's decision was a violation of Double Jeopardy;
E. The Board's determination violated petitioner's plea agreement; and
F. The Board's determination violated petitioner's right to due process.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that this petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
The Board recited the facts of petitioner's commitment offense as follows:
PRESIDING COMMISSIONER MOORE: It says here, Mr. Burnight, that in the early morning hours you were armed with a sawed-off shotgun. You went to the victim's residence to confront the victim regarding statements allegedly made regarding you fooling around with his girlfriend. Is that accurate so far?
INMATE BURNIGHT: Not completely. Some of - - Most of it, yes.
PRESIDING COMMISSIONER MOORE: Okay. And then it says that you placed - - you had a shotgun with you and you placed it out of sight. And you knocked on the door and you confronted the victim. And an argument ensued and then you retrieved the shotgun and you shot the victim at close range in the neck causing his death.
INMATE BURNIGHT: Mostly accurate, yes.
Petitioner's versions of events differs slightly and is as follows:
INMATE BURNIGHT: Okay. When he got to the front door - -When I went back around to the front door, I confronted him. I asked him why he told Jamie that I was messing around with two other girls at the same time and he turned around and asked me, well, why did you tell Jamie Johnson that I was messing around with this other girl named Rachel and we argued that point. And he basically - - I basically told him that he should have kept his mouth shut. He should have never told Jamie that and we argued that point. And I told him I should - - you know, if you don't keep your mouth shut maybe I should shoot your f'ing ass and he said, what are you going to do about it. I turned around, I took a couple of steps back to where I set the gun down earlier, came back and pointed it at him. At that point I had my fingers in between both triggers and he said, quit acting crazy. And I said F you and I pushed him in the chest. The same time I pushed him in the chest with it, he came forward to make a grab which surprised me and I jumped back and pulled one of the triggers.
On January 13, 1993, petitioner pled guilty to second degree murder and was sentenced to a term of 15 years to life on March 22, 1993. Answer, Ex. 1 at 2. On June 14, 2002, the Board held a Subsequent Parole Consideration Hearing for petitioner. Answer, Ex. 2 at 4. At the conclusion of that hearing the Board found petitioner unsuitable for parole. Id. at 57-62.
Petitioner filed a petition for writ of habeas corpus in the Alameda County Superior Court on July 29, 2003. Answer, Ex. 4 at 13. That petition was denied in a short but reasoned opinion on October 3, 2003. Id. at 11. Petitioner then filed a petition with the California Court of Appeal, which was summarily denied on December 18, 2003. Answer, Ex. 5. Petitioner then petitioned the California Supreme Court on January 27, 2004. Answer, Ex. 6 at 3. That petition was summarily denied on February 23, 2005. Id. at 2. Finally, petitioner filed this federal petition on October 6, 2005.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
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. SeePeltier 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. SeeEstelle 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 denovo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). SeeLindh 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.
28 U.S.C. § 2254(d). SeealsoPenry 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). 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).*fn2 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).*fn3 Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
V. DISCUSSION OF PETITIONER'S CLAIMS
A. Violation of Statutory Authority ...