FINDINGS AND RECOMMENDATIONS
Petitioner Lafayette Collins is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §§ 2254. Petitioner is currently serving an indeterminate prison term of seven years to life for a 1984 first degree murder conviction in the Napa County Superior Court. Petitioner does not challenge the propriety of his conviction; rather, he challenges its execution, and specifically, the constitutionality of the June 15, 2005 decision of the Board of Parole Hearings ("Board") finding him unsuitable for parole.
Petitioner contends that the Board's decision was unsupported by some evidence. He further argues that the proper evidentiary standard for reviewing the Board's parole decisions on habeas corpus is a preponderance of the evidence rather than the some evidence test. Finally, petitioner contends that the Board's use of parole suitability regulations implemented under California's Determinate Sentencing Law (DSL), rather than the parole regulations of the Indeterminate Sentencing Law (ISL), which were in effect when he committed his offense, constituted an ex post facto violation. As set forth below, it is recommended that the petition be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 1975, the 63 year old victim's body was discovered in his home lying face down on the living room floor. (Ex. G*fn1 at 11-12.) His hands and feet were tied. (Id. at 12.) The victim had suffered a broken nose and other injuries. (Id. at 18.) An autopsy was performed; the cause of death was "heart failure due to coronary artery thrombosis" with trauma as a contributing cause. (Ex. 10 at 2.)
Nine years later, petitioner's latent fingerprints were identified and he was arrested for the crime. (Ex. G at 19-20.) Although no other arrests were made, petitioner claims to have had a crime partner. At the parole suitability hearing, petitioner stated that he and his crime partner were let in the victim's home to use the telephone. (Id. at 14-15.) Petitioner states that he watched his crime partner tie the victim's hands and then left the room to ransack the house. (Id. at 13-19.) Petitioner denies any other knowledge of assault or abuse to the victim. (Id. at 13-19.)
Petitioner was convicted under the felony murder rule of first degree murder and sentenced to an indeterminate term of seven years to life. He was received in the state prison on August 17, 1984. His minimum eligible parole date passed on February 6, 1991. On June 15, 2005, the Board of Parole Hearings conducted the parole suitability hearing at issue and determined that he was unsuitable for parole.
In finding petitioner unsuitable for parole, the Board relied on the circumstances of his commitment offense, finding that it was carried out in a manner that demonstrated a callous disregard for human suffering, and that the motive for the crime was extremely trivial. (Ex. G at 83-84.) The Board also found that petitioner had an escalating pattern of criminal conduct and an unstable social history which included past assaultive behavior. (Id. at 84.) In addition, the Board found that petitioner still lacked insight into his crime and that he had not sufficiently participated in beneficial self-help programming. (Id. at 84-85.) Petitioner's inconclusive psychological evaluation and prison disciplinary history were also noted by the Board in its reading of the decision. (Id. at 85-87.)
Petitioner raised his claims arising from the Board's denial in a petition for writ of habeas corpus in the Napa County Superior Court. The claims were denied in brief reasoned opinions. (Ex. 2 & 5.) His subsequent petitions filed in the California Court of Appeal, First Appellate District, and the California Supreme Court were summarily denied. (Ex. 7 & 9.)
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). The court must look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or ...