ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application 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 at his second parole consideration hearing on February 26, 2002, violated his rights to due process and equal protection, his right to effective assistance of counsel, and the Americans with Disabilities Act (ADA). Also before the court is the petitioner's request for expansion of the record. (Doc. No. 28).
On February 11, 2009, the undersigned filed findings and recommendations recommending that petitioner be denied habeas relief. (Doc. No. 26.) In so recommending the court concluded that the report of a correctional counselor provided some evidence supporting the Board's 2002 decision to deny petitioner parole. The undersigned also expressed concern regarding "some incongruity" between the opinions expressed in the correctional counselor's report and that set forth in a favorable 1999 psychological evaluation. (Id. at 20.) As the undersigned noted in the initial findings and recommendations, neither the psychologist's evaluation nor the correctional counselor's report were provided to the court by the parties. (See id. at 19 n.11.) Accordingly, the court's review of these reports in determining whether there was "some evidence" supporting the Board's decision to deny parole was limited to the excerpts from the reports that were read into the record at petitioner's parole suitability hearing. Based on those excerpts of the hearing transcript, the court analyzed the reliability of the correctional counselor's lay opinion in the context of the psychologist's expert opinion and concluded that some evidence supported the Board's decision. Id. at 21-22.
Petitioner filed timely objections to the February 11, 2009, findings and recommendations. (See Doc. No. 27.) Petitioner's most serious objection was based in part on an error in the transcript of the 2002 hearing conducted by the Board. Specifically, petitioner has now submitted a copy of the psychologist's evaluation demonstrating that the psychologist did not recommend that the petitioner continue programs that were "helpful in moving toward a proper re-socialization and internalization of emotional, social values." The phrase "emotional, social values" appears only in the transcript of the hearing before the Board. It is not an accurate reflection of the psychological evaluation which instead states that petitioner's continued programming would be "helpful in moving toward a proper re-socialization and internalization of traditional, social values." (Pet'r's Req. for Expansion of the R., Ex. 3 at 7) (emphasis added).*fn1
This inaccuracy implicates one of the undersigned's findings in analyzing whether there was "some evidence" supporting the Board's decision to deny petitioner parole. In the initial findings and recommendations the undersigned noted the repetition of the word "emotional" in the psychologist's evaluation and the phrase "emotional maturity" in the correctional counselor's report. The undersigned found that, in the context of this repetition, "the correctional counselor's observation can be seen to follow the psychologist's evaluation rather than to overrule it." (Findings and Recommendations of February 11, 2009, at 22.) The petitioner's objections clarifying the record demonstrates that the verbal parallel between the two reports is non-existent.
Because the erroneous belief in the use of the word "emotional" in both reports formed part of the factual premise of the undersigned's initial conclusion, this correction of the record warrants revisiting the reports. Revisiting the correctional counselor's opinion is particularly appropriate because it is a lay opinion*fn2 less favorable to petitioner's release on parole than the psychologist's and was the primary post-conviction evidence on which the Board grounded its decision to deny petitioner release on parole. Therefore the initial findings and recommendations filed February 11, 2009 (Doc. No. 26) will be vacated.
Nonetheless, upon careful consideration of petitioner's objections, the record and the applicable law, the undersigned will again recommend that petitioner's application for habeas corpus relief be denied.
Petitioner is confined pursuant to a judgment of conviction entered in the Solano County Superior Court in 1988. (Pet. at 2.) A jury found petitioner guilty of one count of second degree murder, and it was determined that he used a firearm in the commission of the crime. (Id.) On May 12, 1988, petitioner was sentenced to a term of fifteen years to life in state prison with the possibility of parole. (Id.) The Superior Court stayed the two-year sentencing enhancement for the use of a firearm. (Id.) Petitioner was also given credit for time served (603 days plus 302 days, pursuant to California Penal Code § 4019). (See Answer, Ex. 1 at 2.)
Petitioner's initial parole consideration hearing, held on June 1, 1999, resulted in a denial of parole. (Pet., Attach. D.) A subsequent parole consideration hearing was held on February 26, 2002. (Pet., Attach. A, entitled "Hearing Transcripts.") On that date, a two-member panel of the Board found petitioner not suitable and denied parole for two years. (Id. at 49-53.) Petitioner challenges that latter decision in this habeas action.
Petitioner filed an administrative appeal from the February 26, 2002, Board decision on May 3, 2002. (Pet., Attach. D, entitled "Administrative Appeal (CDC 1040) and Decision.") The Board's Office of Policy and Appeals denied petitioner's requests for relief, except one. In this regard, it agreed with petitioner that "the panel had insufficient evidence to conclude that he needs therapy." (Id. at 5.) In this regard, the Office of Policy and Appeals stated that,
[a] review of the prisoner's psychiatric/psychological reports reveal that the prisoner has no mental health disorder and there is no recommendations [sic] for any form of therapy. Therefore, the reference made regarding 'therapy' on page 52 of the Decision will be deleted.
On February 27, 2004, petitioner filed a habeas petition challenging the 2002 parole denial in the Solano County Superior Court. (Pet., at unnumbered 5.) On March 4, 2004, the court denied the petition. (Pet., Attach. entitled "Previous Court Orders.") Petitioner next challenged the 2002 parole denial by submitting a habeas petition to the California Court of Appeal for the First Appellate District. (Id.) The state appellate court summarily denied that petition on March 24, 2004. (Id.) Petitioner then filed a habeas petition with the California Supreme Court that was summarily denied by order filed March 16, 2005. (Id.)
Petitioner's federal habeas petition challenging the 2002 parole denial was received for filing by this court on March 31, 2005.
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.
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). . If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
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).*fn3 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, 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 challenges the Board's 2002 finding of parole unsuitability on the following seven grounds: (1) the Board's failure to fix his term violates California Penal Code § 3041 and the Due Process Clause of the United States Constitution; (2) the Board held petitioner's exercise of his right not to discuss his commitment offense against him; (3) the Board's decision was arbitrary and violated his right to due process because there was no evidence to support its finding that he was an unreasonable risk of danger to society; (4) the Board has failed to establish and apply equal standards of evaluation and that the denial of parole eligibility for two years violated his constitutional rights to due process and equal protection; (5) he was denied effective assistance of counsel; (6) the Board violated his rights under the Americans with Disabilities Act; and (7) he has been denied "complete and meaningful review of his petition" in state court, in violation of the Fourteenth Amendment.
A. The Board's decision and the applicable law The Board commenced its decision denying petitioner parole by stating that the panel had reviewed "all information received at the hearing 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." (Pet., Attach. A, entitled "2002 Parole Hearing Transcript," p. 49.) The phrases "unreasonable risk of danger to society" and "a threat to public safety" are derived from § 3041(b) of the California Penal Code and § 2281(a) of Title 15 of the California Code of Regulations. Pursuant to the Penal Code provision,
[t]he 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(b).
The state regulation governing parole suitability findings for life prisoners states as follows with regard to the statutory requirement of California Penal Code § 3041(b):
Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.
Cal. Code Regs. tit. 15, § 2281(a). The same regulation requires the Board to consider all relevant, reliable information available regarding, the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions ...