FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for four years at his second parole consideration hearing held on March 18, 2002, violated his federal constitutional right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
Petitioner is confined pursuant to a judgment of conviction entered in the Contra Costa County Superior Court in 1985 on a charge of second degree murder. (Pet. at consecutive p. 1.) Pursuant to that conviction petitioner was sentenced to twenty years-to-life in state prison. (Id.)
Petitioner's second parole consideration hearing, which is placed at issue in the instant petition, was held on March 18, 2002. (Answer, Ex. 2.) On that date, a panel of the Board, then the Board of Prison Terms, found petitioner not suitable for parole and denied parole for four years. (Id.)
Petitioner challenged the Board's decision in a petition for a writ of habeas corpus filed in the Solano County Superior Court. (Answer, Ex. 4.) That petition was denied by order dated January 7, 2004, with the following reasoning:
Upon reading the application filed herein, the Court applies the "some evidence" standard when reviewing decisions of the California Board of Prison Terms. (In re Powell (1988) 45 Cal.3d 894, 904.) The Board of Prison Terms' decision will be upheld so long as there is some basis in fact to support the decision. Additionally, "the nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole." (In re Rosenkrantz (2002) 29 Cal.4th 616, 682.)
The Board of Prison Terms found that petitioner "would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." The Board of Prison Terms based the finding on the facts of the commitment offense in which petitioner shot and killed a man. The board (sic) of Prison Terms considered all relevant factors and found that petitioner was unsuitable for parole. (See Cal. Code Regs., Tit. 15, Section 2402; In re Ramirez (App. 1 Dist. 2001) 94 Cal.App.4th 549, 569).
IT IS THEREFORE ORDERED that the Petition for Writ of Habeas Corpus is denied.
On May 6, 2004, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal for the First Appellate District, which was denied by order dated June 28, 2004. (Answer, Ex. 5.) Petitioner subsequently filed a petition for a writ of habeas corpus in the California Supreme Court. (Id.) That petition was denied, with citations to In re Dannenberg, 34 Cal. 4th 1061 (2005) and In re Rosenkrantz, 29 Cal. 4th 616 (2002), by order dated January 4, 2006. (Id.)
The Board described the facts of petitioner's offenses, which have not changed over the years, at the March 18, 2002 parole suitability hearing, as follows:
You know since I don't have your transcripts, your prior transcripts, I am going to read the Statement of Facts into the record again. And I'm going to take them from the Board report.
It says on July 31st, 1983, Bob Altes, A-L-T-E-S, and Dana Bennett, B-E-N-N-E-T-T, and Greg Garcia went to Noel Watkins house in Oakley at 800 hours to pick up some marijuana. Watkins apparently was a minor drug dealer, was able to readily acquire drugs. When Garcia driving before [sic] made another drug stop where they acquired Valium, they took several Valiums, smoked some weed, and drank a half a pint of Seagram Canadian Whiskey and 7-Up and drove back to Watkins' house to get more weed. Along the way, Garcia was stopped by the Brentwood police for weaving along Highway 4. They later arrived at Watkins' home. Watkins returned to the car with a 25-caliber handgun. Exiting along a dirt road in front of his house, they came upon a pick up truck that flashed his lights for right of way on the road. Garcia's car became stuck in sand at the side of the road. Watkins exited the vehicle, ran towards the vehicle and shot the passenger, David Mosby, M-O-S-B-Y, in the face, the bullet driving towards his upper sinus passages into his neck and lodged next to his spinal chord. Mosby's right shoulder suffered nerve damage. He became unconscious and fell out of the truck. Upon seeing Watkins shoot Mosby, Steve Pasley, P-A-S-L-E-Y, exited the truck and took off running. He was shot in the chin at close range. A second bullet caught him in the right shoulder and a third bullet through the lower back penetrating his lung and exiting through his chest. Pasley collapsed and died over a row fence of a neighbor's yard. Watkins then ran home. Altes stated he was unaware that anyone had actually been shot, followed Watkins to his home and found him in the process of re-loading the handgun and his two 22-caliber rifles. Altes tried to convince Watkins not to hurt anyone. Watkins' father took the handgun from him and his mother asked Altes to leave. Police arrived and arrested Watkins without incident. A search of the home revealed a 25-caliber pistol and two loaded rifles, a loaded 10-shot clip, a loaded Winchester 30/30, a photograph album including several photographs of Watkins sporting firearms, including the murder weapon, and a manual entitled the Anarchist's Cookbook.
Petitioner admitted at the March 18, 2002 parole suitability hearing that he committed these crimes. (Id. at 9.) He explained that he had been drinking at the time of the crimes, that he had "enemy situations in the area," and that he had had an unpleasant conversation with the occupants of the victims' car immediately prior to the shootings. (Id. at 9-10.) Petitioner acknowledged that Mr. Pasley was an "innocent victim." (Id. at 10.) When pressed about why he committed the crimes, petitioner explained that he was provoked and "taunted" and that "the fellows that dropped by the house I guess flipped [my] button." (Id. at 13.) Petitioner explained that he had fought with "one of the local guys at a local bar" several weeks prior to the shooting, but that victim Pasley was not one of the persons he fought with. (Id. at 12.)
I. Standards of Review Applicable to Habeas Corpus Claims
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. See Peltier 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. See Estelle 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 de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 § 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 ...