The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner Calvin Jones is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of first-degree murder in Placer County Superior Court in 1973, and sentenced to seven-years-to-life with the possibility of parole. He has filed a petition for writ of habeas corpus, together with relevant portions of the state court record, under 28 U.S.C. § 2254 challenging his 2005 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 1 at 1-24.) Respondent has filed an answer to the petition, and petitioner has filed a traverse in reply to the answer. (See Dkt. 9; Dkt. 10.) The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends the Court deny the petition, and dismiss this action with prejudice.
The Life Prisoner Evaluation Report relied upon by the Board during the 2005 parole hearing set forth the following relevant facts:
"In 1969, Calvin Jones and Rosalio Estrada were co-owners of Port City Liquors in Stockton, California. During 1970, Jones and his partner (Estrada) decided to venture into the construction business and took a third partner, Anthony C. Virgilio (the victim) to form the Port City Construction Company. The construction company was suffering financially. On December 31, 1973, at approximately 7 p.m., the Stockton Police found the victim lying in the street on the 400 block of North Sutter Street, near his automobile, suffering from multiple gunshot wounds to the arm, leg, chest, and abdomen, coupled with lacerations to the face. The victim, prior to death, informed authorities that Calvin Jones and Rosalio Estrada were responsible for the shooting; however, he stated neither had actually shot him. According to the victim, he had arrived for a meeting with Calvin Jones at 920 North Hunter Street, but was accosted by another man who shot him. Anthony C. Virgilio died at St. Joseph's Hospital at 9:15 p.m. on December 31, 1973.
Per the Probation Officer's Report (POR), autopsy revealed the victim had been shot at least six times from a .38 caliber handgun. Furthermore, it was learned Jones and Estrada had secured a $100,000 life insurance policy on the victim, shortly before the murder. Jones was not arrested for this offense until April 3, 1980. On June 28, 1983, Jones was found guilty by jury trial of Section 187, California Penal Code, First-Degree Murder. The case was heard in Placer County as a result of a change of venue from San Joaquin County. Charges against Rosalio Estrada were dismissed by the San Joaquin County District Attorney's Office."
(See Docket 9, Exhibit D at 1.)
As discussed above, although the commitment offense occurred on December 31, 1973, petitioner was not convicted by a jury of first-degree murder in Placer County Superior Court until 1983. (See id. at 2.) Petitioner was sentenced to seven-years-to-life with the possibility of parole, and his minimum eligible parole date was set for January 20, 1989. (See Dkt. 1, Ex. A at 1.) The parole denial which is the subject of this petition took place after a parole hearing held on August 1, 2005. This was petitioner's seventh subsequent and eighth overall parole consideration hearing, and his application for parole was denied for three years. (See id. at 21 and 39.) As of the date of the 2005 parole hearing, petitioner was approximately sixty-one-years-old, and had been in custody for twenty-two years. (See id. at 25.)
After denial of his 2005 application, petitioner filed habeas corpus petitions in the Placer County Superior Court, California Court of Appeal, and California Supreme Court. (See Dkt. 9, Exs. E, F, and G.) Those petitions were unsuccessful. (See id.) This federal habeas petition followed. Petitioner contends his 2005 denial by the Board violated his Fifth and Fourteenth Amendment Due Process rights, as well as his Eighth Amendment right to be free from cruel and unusual punishment. Thus, petitioner does not challenge the validity of his conviction, but instead challenges the Board's 2005 decision finding him unsuitable for parole.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because 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). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. 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 looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).
Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993)).
IV. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS
A. Due Process Right to be Released on 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 were constitutionally sufficient. Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006).
Accordingly, our first inquiry is whether petitioner has a constitutionally protected liberty interest in parole. The Supreme Court articulated the governing rule in this area in Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying "the 'clearly established' framework of Greenholtz and Allen" to California's parole scheme). The Court in Greenholtz determined that although there is no constitutional right to be conditionally released on parole, if a state's statutory scheme employs mandatory language that creates a presumption that parole release will be granted if certain designated findings are made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 12; Allen, 482 U.S. at 377-78.
As discussed infra, California statutes and regulations afford a prisoner serving an indeterminate life sentence an expectation of parole unless, in the judgment of the parole authority, he "will pose an unreasonable risk of danger to society if released from prison." Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that "California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) held that California Penal Code § 3041 vests all "prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the ...