The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner Tony Protopappas is currently incarcerated at the Folsom State Prison in Folsom, California. He was convicted by a jury of three counts of second degree murder in Orange County Superior Court on July 31, 1984, and sentenced to three terms of 15-years-to-life with the possibility of parole, which he is serving concurrently. He has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging the 2006 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 Respondent has filed an answer to the petition together with relevant portions of the state court record, and petitioner has filed a traverse in response to the answer. The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends the petition be denied and this action be dismissed with prejudice.
Prior to the commission of the instant offenses, petitioner was licensed to practice as a dentist and oral surgeon, which included the administration of general anesthesia. (See Docket 1 at 2, fn.1; id., Exhibit F at 3.) Petitioner was operating his own dental practice in Costa Mesa, California, when he killed three of his patients by administering lethal overdoses of local and general anesthesia during various dental procedures. (See id., Ex. F at 1-3.) The evidence at trial showed that petitioner knew his conduct endangered the life of each victim, but he nevertheless acted with deliberate and conscious disregard for their safety. (See Dkt. 10, Ex. 5 at 1.) At the time of the murders, petitioner was also abusing alcohol, cocaine, and opiates on a daily basis. (See Dkt. 1, Ex. F at 3.)
Petitioner's Life Prisoner Evaluation report, which was prepared in September 2005, set forth the following relevant facts:
"On September 30, 1982, Kim M. Andreassen went to the defendant's dental office for dental work and was placed under general anesthetic with a combination of drugs. Several times during the dental procedures, Ms. Andreassen's breathing was noted to be shallow, resulting in oxygen being administered to her by the defendant. Upon completion of the dental work, Ms. Andreassen began gasping for air. Oxygen was administered; paramedics arrived and found her in cardiac arrest. She was transported to Hoag Hospital where she was pronounced dead on arrival.
During the investigation it was revealed Ms. Andreassen was under doctor's care and her personal physician had been contacted several days before her scheduled appointment and he advised that only a local anesthetic be administered to her. Reportedly, she insisted on a general anesthetic. An employee at the dental office told a police investigator when the defendant was told of [the] patient's insistence, he replied, "If I put her to sleep, that will be her death for sure."
On February 8, 1983, Patricia M. Craven went to the defendant's office for dental work. She was placed under general anesthetic through intravenous administration of a combination of drugs. Ms. Craven stopped breathing, but began breathing again after the defendant administered oxygen.
Dr. Badea, an employee of the defendant[,] performed some dental work on Ms. Craven over the next several hours, during this time additional anesthetics were administered to the patient several times. When Dr. Badea finished her dental work with Ms. Craven, she advised the defendant and he indicated that he would extract Ms. Craven's wisdom teeth. Additional drugs were administered to keep her unconscious.
Upon completion of the dental work, staff members were unable to awaken her. The defendant administered Narcan to her to counteract the anesthetics. One of the defendant's employees wheeled Ms. Craven to her mother's car. She was placed on the front seat of the vehicle. Her mother, Mrs. Russ, drove Ms. Craven to [their] residence. A short time later Mrs. Russ observed her daughter's breathing became shallow and heard a gurgling noise in her throat. Paramedics were summoned: they determined she was in cardiac arrest and transported her to Mission Community Hospital, where she died on February 19, 1983.
On February 11, 1983, Mrs. Cathryn Jones went to the defendant's office to have all her teeth removed. She was placed under general anesthetic through the use of intravenous injections of drugs. A short time later, Mrs. Jones' fingernails were turning blue. An assistant noticed the patient's condition, at which time Protopappas became upset and said "this is what happens in this office all the time. You don't know what is blue." The defendant administered oxygen and injected Narcan into Mrs. Jones in an attempt to counteract the effects of the anesthetic. When it was determined that Mrs. Jones had no detectable pulse, paramedics were summoned and found her to be in cardiac arrest. She was transported to Hoag Hospital, where she died on February 13, 1983." (See Dkt. 1, Ex. F at 1-2.)
In an opinion published in part, the California Court of Appeal also set forth a detailed description of petitioner's offenses, which petitioner asserts he "accepts" as an accurate depiction of the facts. (See Dkt. 1, Ex. A at 1-6; id., Ex. B at 60.) The California Court of Appeal summarized its factual findings as follows:
"Petitioner did not supply proper general anesthesia or tailor the dosage to the patient. Without the patient's authorization he substituted surrogate dentists who were neither licensed nor qualified to administer general anesthesia. He instructed them to give improperly preset dosages for extended periods with little or no personal supervision and caused multiple patients to receive ever increasing amounts of general anesthesia at the same time, none of them enjoying his undivided attention. He was also habitually slow in reacting to the resulting overdoses; and in the case of Craven, simply abandoned her." People v. Protopappas, 201 Cal.App.3d 152, 171-72 (1988).
Petitioner was convicted by a jury of three counts of second degree murder based upon a theory of "implied malice" in Orange County Superior Court on July 25, 1984. (See Dkt. 1, Ex. A; Dkt. 10, Ex. 1.) Petitioner's minimum eligible parole date was set for October 22, 1993. (See Dkt. 1, Ex. B at 1.) The parole denial which is the subject of this petition took place after a parole hearing held on January 19, 2006. (See id.) This was petitioner's fourth parole consideration hearing. (See id., Ex. G.) As of the date of the 2006 parole hearing, petitioner was sixty-years-old, and had been in custody for approximately twenty-one years. (See id., Ex. G at 5.)
After denial of his 2006 application, petitioner filed habeas corpus petitions in the Orange County Superior Court, California Court of Appeal, and California Supreme Court. (See Dkt. 10, Exs. 5, 6 and 7.) Those petitions were unsuccessful. (See id., Exs. 5, 6 and 7.) This federal habeas petition followed. Petitioner contends the 2006 denial by the Board violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not challenge the validity of his conviction, but instead challenges the Board's 2006 decision finding him unsuitable for parole.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "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) and (2).
As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be [objectively] unreasonable." Id. at 411.
In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).
Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed ...