The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole in 2005. Pending before the court is petitioner's petition for a writ of habeas corpus (Doc. 1).
Petitioner is serving an indeterminate sentence of 15 years to life following a 1989 conviction for second degree murder. At the time sentence was imposed on June 11, 1991, petitioner was credited 423 days time served. Petitioner appeared before the Board of Parole Hearings ("Board") for a subsequent parole suitability hearing on June 22, 2005. It is unclear whether petitioner had more than one prior parole hearing. The Board denied parole for two years, stating that "[t]he most important reason for the denial is the commitment offense which was the murder of Simron Kler, the inmate's 10-month-old daughter. . . ." The Board added:
. . .[The victim] was just a mere child, an infant. And the crime was carried out in an especially cruel fashion, this child was beaten to death, the various courts indicate over 100 different areas showing bruising, contusions, that she had broken ribs, and unfortunately the injuries that were noted, primarily were new, but the results also show that she had prior abuse. And prior broken ribs. Or ribs that were apparently in the process of healing. The motive for this crime is completely inexplicable, the inmate says that he lost control, that he was angry at the time that she disturbed his sleep. But this young girl lost her life for no reason, other than the fact that the inmate was overly ambitious and obviously self-centered and did not have any care for his daughter. . . .
The Board also cited the following other reasons for denying parole: (1) failure to participate in sufficient self-help programming while in prison; (2) opposition from the Alameda County District Attorney's Office; and (3) lack of suitable parole plans in India.*fn1 The Board noted that a February 2005 psychological evaluation was "supportive of release" because the doctor opined that petitioner was a "lower than average risk for future violence compared to other men his age." The Board commented that this was "such a statement as . . . once someone has committed a violent crime, they are always going to be a higher risk than the average citizen." The Board also noted that petitioner had been "disciplinary free" since his last parole hearing.
As to self-help in particular, the Board added:
. . . The panel finds that the inmate needs additional self-help in order to further delve into the causative factors for his participation in the life crime. And until further progress is made, he continues to be unpredictable and potential threat to others. . . . When it [programming] becomes available to you, [we recommend] that you participate in self-help. . . . You have many things to be commended for, there is absolutely no question that you are an exceptionally well programming inmate. That you have completed auto mechanics, body and fender, prior to incarceration you were a college graduate. You are to be commended that you only have two 115's [disciplinary charges] during the course of your incarceration and that you have been very busy in self-help programs, most recently, bible courses; the FEMA or Emergency Management Institute courses; parenting; conflict resolution; anger management and many others that you have obviously a good wor[k] ethic because you have received laudatory chronos for your work, for your contributions. But these positive aspects of your behavior just do not yet outweigh the factors of unsuitability. . . .
The Board commented that, while petitioner has taken responsibility for his crime and the effect it has had on his family, but stated: "I'm not sure you really take full responsibility for everything you did to this child prior to her death."
Petitioner filed a petition for a writ of habeas corpus in the Alameda County Superior Court challenging the 2005 denial of parole. In denying relief, the state court concluded:
. . . The Petition fails to state a prima facie case for relief. Even though Petitioner has submitted numerous documents in support of his Petition, review of the transcripts provided and documents pertaining to the June 22, 2005, hearing indicate that there was no abuse of discretion by the Board of Prison Terms. The factual basis of the BPT's decision granting or denying parole is subject to a limited judicial review. A Court may inquire only whether some evidence in the record before the BPT supports the decision to deny parole. The nature of the offense alone can be sufficient to deny parole . (In re Rosenkrantz (2002) 29 Cal.4th 615, 652, 682). The record presented to this Court for review demonstrates that there was certainly some evidence including, but not limited to the committing offense, Petitioner's lack of acceptable parole plans should he be deported to India, and the BPT's finding that Petitioner should participate in additional self-help programming to enhance Petitioner's ability to realistically understand his role and responsibility in abuse of his daughter. There is nothing in the record that indicates that the Board's decision was arbitrary or capricious. . . .
The California Court of Appeal denied relief without comment or citation, as did the California Supreme Court.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is not available for any claim decided on the merits in state court proceedings unless ...