The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner is currently incarcerated at Mule Creek State Prison, in Ione, California. He pleaded nolo contendere to one count of second degree murder in Los Angeles County Superior Court on April 13, 1982. He is currently serving a sentence of fifteen-years-to-life with the possibility of parole and has filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2006 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Dockets 6 & 10.) Petitioner contends his due process rights were violated when the Board denied parole based upon false information contained in an unsigned Probation Officer's Report; that the Board's failure to honor his plea agreement violated his due process rights; that his equal protection rights under the Fourteenth Amendment were violated when the Board refused to release him pursuant to the GPS tracking system used for sexually violent offenders; and that his sentence is "grossly disproportionate" to his offense in violation of his Eighth Amendment right to be free from cruel and unusual punishment. The Court, having thoroughly reviewed the record and the briefing of both parties, recommends the Court deny the amended petition and dismiss this action with prejudice.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this amended petition as 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). It is also appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See Williams, 529 U.S.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 normally looks to the last reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). Where, as in this case, the state courts issue summary denials without explaining their reasons, see infra, this Court must conduct an independent review of the record to determine whether the state courts' decisions were contrary or involved an unreasonable application of Supreme Court holdings. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). Although our review of the record is conducted independently, we continue to show deference to the state court's ultimate decision. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
III. PRIOR STATE COURT PROCEEDINGS
In his amended federal habeas corpus petition, petitioner presents the same four grounds for relief that he presented to the California Supreme Court. (See Dkt. 6 & Dkt. 10, Exh. E.) Respondent concedes that petitioner's plea agreement claim has been properly exhausted and timely filed, but fails to address in any way the remaining three grounds for relief. (See Dkt. 10 at 2.) Respondent's failure to address all of the allegations in the amended petition appears to be an oversight and is in violation of Rule 5(b) of the Rules Governing Section 2254 Cases in the United States District Courts, which requires respondent to address all allegations presented in a habeas corpus petition. In light of the already lengthy delay in this case, however, the Court has independently reviewed the record and determined that petitioner properly presented all four claims to the state's highest court. (See id., Exh. E.) See 28 U.S.C. § 2254(b)(3); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[s]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (holding that California law requires presentation of claims to the California Supreme Court through petition for discretionary review in order to exhaust state court remedies). Accordingly, I recommend the Court find that petitioner has properly exhausted all four grounds for relief.
Once it has been determined that a petitioner's claims have been exhausted, this Court typically looks to the state court's orders upholding the Board's decision to determine whether they meet the deferential AEDPA standard. See Ylst, 501 U.S. at 803-04. In denying the petition, the Los Angeles County Superior Court issued a one-paragraph decision addressing petitioner's plea agreement claim. (See Dkt. 10, Exh. D.) Like respondent, it failed to address petitioner's three remaining claims. (See id.) As discussed supra, when a state court issues a decision on the merits but does not provide a reasoned decision, we review the record independently to determine whether that decision was objectively reasonable. See Delgado, 223 F.3d at 982. Accordingly, this Court must conduct an independent review of three of petitioner's four grounds for relief.
The Board's 2006 report summarized the facts of the crime as follows:
..the deceased['s] son, Dwight Washabaugh, resident of Colorado testified he last spoke with his mother by phone on June 27, 1980, at which time she was in her home in Soquel. A missing [person] report had been filed on the deceased on or about the end of July 1980. An investigation was initiated by detectives from the Los Angeles Police Department, Robbery Homicide Division and the Santa Cruz County Sheriff's Department. On July 7, 1980 a human hand was found by officers of the Los Angeles Police Department in the traffic lane on the northbound Hollywood freeway at Vermont. On August 7, 1980 fingerprint identification disclosed that the human hand was that of Mrs. Washabaugh. It was then learned that defendant Morales had obtained possession of the deceased's vehicle and used her credit card forging her name. At the time of the arrest, the defendant was in possession of the deceased's car, purse, credit cards and her diamond rings, which lead [sic] to the conviction of Morales. The victim had become interested in prison reform and started visiting prison inmates, including Morales,.whom she saw frequently while he was incarcerated at Soledad. Then he was transferred to [a] Los Angeles area half way house on April 14, 1980 in anticipation of an upcoming parole, the deceased visited Los Angeles for one day on April 30, 1980 and was secretly married [to petitioner]. (Dkt. 10, Exh. C at 25-26.)
Petitioner pled nolo contendere to second degree murder on April 13, 1982, in Los Angeles County Superior Court. (See Dkt. 17, Exh. F.) He began serving his sentence of fifteen-years-to-life with the possibility of parole on July 13, 1982. (See Dkt. 10, Exh. C at 1.) His minimum eligible parole date was set for August 2, 1990. (See id.) Petitioner has been incarcerated for approximately twenty-seven years for this offense.
The parole denial, which is the subject of the amended petition, followed a parole hearing held on January 20, 2006. During the hearing, counsel for petitioner notified the Board that petitioner wished to make "two objections, a motion and offer evidence i[n] mitigation." (See id. at 2.) The issues raised at the Board hearing are the same issues presented in this petition. (See id. at 2-11.) The Board overruled petitioner's objections and denied his motion and offer of evidence in mitigation. (See id. at 11-12.) After the Board's ruling, petitioner excused himself from the hearing, as planned. (See id. at 11.) His counsel was present for the remainder of the hearing. (See id.) While this was not petitioner's first "subsequent parole consideration hearing," it is unclear from the record how many such hearings have been held. Regardless, it is safe to assume that this was not his first hearing and that all prior applications have been denied. Petitioner's next parole consideration hearing is scheduled for 2010. (See Dkt. 6, Memorandum in Support at 3.)
V. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS
A. Due Process Right to be Released on Parole
Before we consider petitioner's claims, we must first determine whether petitioner has a constitutionally protected liberty interest in parole. Under the Fifth and Fourteenth Amendments to the United States Constitution, the government is prohibited from depriving an inmate of life, liberty or property without the due process of law. U.S. Const. amends. V, XIV. A prisoner's due process claim must be analyzed in two steps: the first asks whether the state has interfered with a constitutionally protected liberty or property interest of the prisoner, and the second asks whether the procedures accompanying that interference ...