FINDINGS AND 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. In the application for relief pending before this court, petitioner challenges the decision of the California Board of Prison Terms, now the California Board of Parole Hearings (hereinafter "Board"), to deny him parole for one year at his fourteenth parole consideration hearing held on April 4, 2006. Specifically, petitioner claims that the decision violated his federal constitutional rights to due process, equal protection, and a jury trial and was also issued in violation of the Ex Post Facto and Double Jeopardy Clauses and state law. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be granted with respect to his due process claim.
Petitioner is confined pursuant to a judgment of conviction entered in the Alameda County Superior Court on November 14, 1977 on charges of first degree murder and kidnapping. (Pet. at consecutive p. 1.) Pursuant to that state court conviction, petitioner was sentenced to life in state prison with the possibility of parole. (Id.)
The parole consideration hearing at issue was held on April 4, 2006. (Pet., Ex. entitled "2006 Transcripts" (hereinafter Transcript).) It was petitioner's fourteenth parole consideration hearing. (Pet., Ex. entitled "preliminary statement," at 2.) On that date, a panel of the Board found petitioner not suitable for parole and denied parole for one year. (Id.)
Petitioner challenged the Board's decision in a petition for a writ of habeas corpus filed in the Alameda County Superior Court. (Answer, Ex. 2.) That petition was denied by order dated March 1, 2007, with the following reasoning:
The Petition for writ of habeas corpus is denied. The Petition fails to state a prima facie case for relief. While not submitting a transcript of the entire hearing, Petitioner has submitted numerous documents in support of his Petition, review of the transcripts provided and documents pertaining to the April 4, 2006 hearing, indicate that there was no abuse of discretion by the Board of Prison Terms. The factual basis of the BPT's decision granting or denying parole is subject to a limited judicial review. A Court may inquire only whether some evidence in the record before the BPT supports the decision to deny parole. The nature of the offense alone can be sufficient to deny parole. (In re Rosenkrantz (2002) 29 Cal.4th 616, 652, 658, 682; In Re Dannenberg (2005) 34 Cal.4th 1061. The record presented to this Court for review demonstrates that there was certainly some evidence, including, but not limited to the committing offense, including Petitioner's continuing denial of culpability for that offense, and the conclusions contained in the psychologist's report about the future dangerousness of Petitioner based on his insistence of not being the perpetrator of the committing offense. There is nothing in the record that indicates that the Board's decision was arbitrary or capricious, nor that Petitioner's equal protection or due process rights were violated. Thus, Petitioner has failed to meet his burden of sufficiently proving or supporting the allegations that serve as the basis for habeas relief.
Petitioner subsequently filed a petition for a writ of habeas corpus in the California Court of Appeal. (Answer, Ex. 3.) Although the record before this court does not contain a copy of the Court of Appeal's decision in response to this petition, respondent represents that it was summarily denied. (Answer at 2 & Ex. 4.) On June 20, 2007, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (Answer, Ex. 5.) That petition was summarily denied by order dated August 8, 2007. (Answer, Ex. 6.)
The Board described the facts of petitioner's offenses, which have not changed over the years, at the April 4, 2006 parole suitability hearing, as follows:
On October 20th, 1976, Walker sought revenge after learning from a third party (Timothy Vaughn, V-A-U-G-H-N) that the victim McWoodson... had burglarized his apartment. Walker armed himself with a revolver, asked the witness to direct himself to the McWoodson residence. After arriving, Walker began beating McWoodson. Testimony indicates the victim made a futile attempt to apologize for the burglary. He was taken by gunpoint and was forced to drive his car to a remote area near the Oakland Coliseum. Witness Vaughn was told by Walker to exit the vehicle and 'run and not look back.' Victim McWoodson was found shot to death in the rear seat of his vehicle the following day. He had been shot four times at close range and had expired from the gunshot wounds. Later investigation revealed a leather jacket belonging to Walker with bloodstains that matched samples of the deceased blood." And this summarizes information more further set forth in the resume authored by the District Attorney's office, which is presented, and counsel had knowledge. The prisoner's version in the report is as follows: "Walker stated that October 20th, 1976, a third party Timothy Vaughn informed him that McWoodson (the victim) had burglarized his place of residence. Vaughn accompanied Walker to McWoodson's residence where Walker confronted McWoodson about the burglary. A conversation resulted in McWoodson admitting the burglary and agreeing to return all stolen property. Walker left and claims he had no further contact with McWoodson, and that he knows nothing about the murder." This matter proceeded to jury trial, and Mr. Walker was convicted for the offense for which he is now in custody, and his denial has been consistent all along.
(Transcript at 7-9.) Petitioner declined to discuss his offense of commitment at the April 4, 2006 parole consideration hearing, maintaining that he was innocent of the murder of Timothy Vaughn. (Id. at 5.)
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). 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.
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). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does ...