FINDINGS AND RECOMMENDATIONS
Petitioner Gary Metoyer 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 November 8, 2006, decision by the Board of Parole Hearings (hereinafter Board) finding him unsuitable for parole. Petitioner argues that the Board's determination violated his 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.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Board recited the facts of petitioner's commitment offense as follows: PRESIDING COMMISSIONER ENG: Okay. So before you took the recess, I was going - - I had stated that I will read into the record the statement of facts and I'm taking it from the probation officer's report, pages 2 and 3, states the following is a background of the offense:
"Gary Metoyer's two brothers, Bryan Perry and Rodney Perry, were with him and their friend, Tyrone, T-Y-R-O-NE, Forman, F-O-R-M-A-N, at the Mardi Gras Restaurant. Gary and Rodney left the restaurant and went to a liquor store. In front of the store they saw the victim, Robert Herrera, H-E-R-R-E-R-A, and asked him if he had done dope. He ran and they followed him to his apartment. Arriving there, Alexander Taylor answered the door and said that the victim did not want to come out. Gary and Rodney pushed the door open and Taylor tried to punch them. Then Herrera came out and hit Rodney in the head with a greaser gun. Gary then punched out Alexander and Gary took Rodney to Gary's residence dropping him off. Rodney had a bad cut in the forehead requiring 12 stitches. After this, Gary went back to the Mardi Gras and told the others that he and Rodney had been robbed and that Rodney had been hurt. Gary and Tyrone got into a friend's car and Tyrone told them to go to his place so he could get his gun. They then went to the apartment house and Gary broke the window in the apartment with a baseball bat and Tyrone fired shots into the apartment. There were a number of other people also in the apartment. One of them described the apartment as "a good place to get high" and said that after the shooting, she had grabbed a cocaine pipe and left the residence. Another person who was in the residence told police about cocaine use by the victim, Alexander, herself, and another on the evening of the incident."
Okay. And sir, because you are not going to discuss the crime with us, I will read into the record what we have as the prisoner's version and I'm taking that from the July 7th, 2005 Board reports and states - -
PRESIDING COMMISSIONER ENG: Absolutely - - absolutely. Okay.
"Metoyer states he deeply regrets what happened. He does not feel the victim had just cause to hit his brother and bust his brother's head open. However, he was under the influence and exaggerated what had happened. He knows now he did it only because of the abuse of drugs and his extreme intoxication. Metoyer indicated that by no means did he intend for anyone to be shot or for the weapon to even come out of the car. All he wanted to do was break the window to get the victim in trouble with management. Metoyer agrees that the offense summary retrieved from the probation officer's report to be correct. However, we did not push the door open (only door to the entrance of the building)."
Answer, Exhibit 3 at 80-83.
Petitioner was found guilty of murder in the second degree and on May 3, 1988, sentenced to a prison term of 21 years to life. Answer, Ex. 1 at 90.
On November 8, 2006, the Board held petitioner's Subsequent Parol Consideration Hearing. Answer, Ex. 3 at 63. At the conclusion of that hearing the Board found petitioner unsuitable for parole. Id. at 135.
Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court on February 16, 2007. Answer, Ex. 1 at 2. That petition was denied in a reasoned opinion on May 25, 2007. Answer, Ex. 2. Petitioner then filed a petition with the California Court of Appeal on July 17, 2007. Answer, Ex. 3 at 2. That petition was summarily denied on July 24, 2007. Answer, Ex. 4. On July 31, 2007, petitioner petitioned the California Supreme Court. Answer, Ex. 5 at 2. That petition was summarily denied on October 10, 2007. Answer, Ex. 6. Finally petitioner filed this federal petition on November 2, 2007.
III. 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 ...