FINDINGS AND RECOMMENDATIONS
Petitioner Allen Turk is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Turk challenges the December 12, 2005, decision by the Board of Parole Hearings (hereinafter Board) finding him unsuitable for parole. 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 Turk's commitment offense as follows: PRESIDING COMMISSIONER FARMER: In April of 1985, defendant was an inmate at Folsom State Prison serving a life sentence for second-degree murder. The defendant was confined to a segregated housing unit, otherwise known as the SHU, where gang members and violent prisoners are housed. On May 21st, 1985, Gary Bradley (phonetic), [a] prison correctional officer, was delivering canteen items to the SHU inmates. As he approached defendant's cell, defendant complained that his canteen items were being crushed by the containers. Having verified that none of the defendant's items were damaged, Bradley retorted it was not a problem, and he told the defendant not to worry. Defendant became upset, cursing Bradley and [he] refused delivery of his canteen items. Both Bradley and defendant became vocally agitated and exchanged profanities. Defendant demanded Bradley open the cell door so that defendant could, quote, "kick Bradley's ass," closed quote. Defendant repeatedly demanded to see the sergeant, but Bradley did not feel the incident warranted the sergeant's intervention. The next morning pursuant to defendant's request, the defendant was allowed to meet with Sergeant Washington. Bradley was present at the meeting. During the initial phase of the meeting, defendant was upset and business-like, complaining about Bradley's behavior on the proceeding day. As the conversation continued, defendant became more agitated, raising his voice and speaking emphatically. At one point, defendant violently jumped around in his chair. At the end of the conversation, defendant slammed the desk with his hand and jumped up as if he was ready to leave. He turned again, glared at Bradley, who was standing by the door. Defendant went for Bradley's neck. Bradley tucked his chin down, but defendant grabbed Bradley and bit his cheek and ear. A melee ensued, and it required the combined efforts of Washington, Bradley, and a third officer, Takahashi, T-A-K-A-H-A-S-H-I, to subdue the defendant. During the struggle, Takahashi saw blood in defendant's mouth. Plastic surgery was required to repair the missing skin and tissue in Bradley's cheek. As a result of the attack, Bradley suffered a gash to his cheek three inches long by one inch in size. Defendant also bit off part of Bradley's right ear lobe, leaving the right ear about one-half of an inch shorter than the left ear. Defendant admitted having abnormally long sharp teeth which periodically required filing. Defendant acknowledged having been in an argument with Bradley but claimed the meeting in Washington's office was a, quote, "set up," closed quote. He claimed he only defended himself against the offensive tactics of Bradley.
Answer, Exhibit A at 97-99.
A jury found Turk guilty of assault and he was sentenced to life without the possibility of parole for nine years under California Penal Code section 4500.*fn1 Id. at 19. After nine years Turk was eligible for parole. On December 12, 2005, the Board held Turk's Subsequent Parol Consideration Hearing. Id. at 84. At the conclusion of that hearing the Board found Turk unsuitable for parole. Id. at 141.
Turk filed a petition for writ of habeas corpus in the Sacramento County Superior Court on or around April 26, 2006. Id. at 31-55. That petition was denied in a reasoned opinion on June 15, 2006. Id. at 19-21. Turk then filed a motion for reconsideration which was denied on July 26, 2006, in another reasoned opinion that supplemented the court's original opinion.*fn2
On September 25, 2006, Turk filed a petition in the California Court of Appeal, Third Appellate District. Answer, Ex. B at 4. That petition was summarily denied on October 12, 2006. Id. at 2. Turk then filed a petition in the California Supreme Court on November 6, 2006, which was summarily denied on May 9, 2007. Answer, Ex. A at 2-3.
Turk finally filed his first federal habeas petition on June 6, 2007. That petition was dismissed with leave to file an amended petition, which was filed on March 18, 2008.
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 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.
28 U.S.C. § 2254(d). SeealsoPenry 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). 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).
IV. DISCUSSION OF PETITIONER'S CLAIMS
Turk argues that the Board's has "repeatedly refused to afford him the state created right given California prisoners serving life terms . . . pursuant to In re Rodriguez . . . ." and has violated his right to due process. First Amended Petition at 3-4.
The Sacramento County Superior Court rejected this claim stating: It is questionable whether Rodriguez and Wingo remain in effect, after the 1977 enactment of the Determinate Sentencing Law. Even if they have any remaining effect, however, petitioner does not establish entitlement to relief under it at this time. His maximum punishment is that of the maximum of his sentence, which is life imprisonment.
3) Applicable Law And Discussion
California law provides that where the Board fails to promptly fix a primary term, "the court will deem it to have been fixed at the maximum" by default. In re Rodriguez, 14 Cal.3d 639, 654 (Cal. 1975); seealsoIn re Bobby Williams, 53 Cal.App.3d 10, 17 (1975) (quoting People v. Wingo, 14 Cal.3d 169, 182 (Cal. 1975) for the proposition that where the Board omits or declines to fix the term of a prisoner serving an indeterminate sentence, the maximum term will be deemed to be the fixed term). Furthermore, California law entitles Turk to a base term only after he is found suitable for parole. In re Stanworth, 33 Cal.3d 176, 183 (Cal. 1982) (holding that under both the indeterminate and determinate sentencing law, a life prisoner must first be found suitable for parole prior to setting a parole date). Since Turk was deemed unsuitable ...