The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Aubrey L. Love, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Love is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent (the "State") has answered, and Love has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In February 1992 Love was convicted in the Alameda County Superior Court on a guilty plea of Murder in the Second Degree (Cal. Penal Code § 187) with a fire-arm enhancement (Cal. Penal Code § 12022.5). The Alameda County Superior Court sentenced Love to an indeterminate prison term of 15 years to life on the second-degree murder conviction and a determinate sentence of three years on the fire-arm enhancement, to be served consecutively.
Love does not challenge his conviction or sentence in this proceeding.
In November 2007 Love appeared for his second successive parole-suitability hearing before the Board of Parole Hearings ("Board"). The Board, determining that Love would pose an unreasonable risk of danger to society or a threat to public safety if released on parole, found Love to be unsuitable for parole. Love timely sought habeas corpus relief in the Alameda County Superior Court, which denied his petition in an unpublished, reasoned decision. Love's subsequent petition for habeas relief was summarily denied by the California Court of Appeal without opinion or citation to authority. The California Supreme Court summarily denied review without opinion or citation to authority on July 9, 2008. Love timely filed his Petition for relief in this Court on August 18, 2008.
The facts of the commitment offense as recited by the Board are:
On May 8th 1990, the police were called to the victim's (Patricia Churchill) house. When the police arrived, Patricia Churchill was bleeding from the back of her head from a gunshot wound. None of the neighbor's [sic] heard anything, but they all identified Aubrey Love, the prisoner, as the victim's husband. Witnesses reported the victim and Love fought often.
When the victim was taken to the hospital, it was determined she was sixteen to twenty weeks pregnant. The victim was placed on life support in an attempt to save the life of the fetus. Patricia Churchill, the victim, was finally taken off life support after it was determined the fetus was not viable.
During the investigation it was discovered that on November 11th 1989, the victim filed a domestic violence dispute against Love. Once [sic] witness stated it was filed after cousins of victim beat Love. Another witness stated the victim informed her that the victim was planning to leave Love and did not want him to know.
This same witness had seen Love approximately three weeks before the murder, and Love had asked about the victim. He stated 'Revenge is sweet'. The witness also stated she heard sounds of fighting earlier in the evening of the victim's death.
When Love was first interviewed, he admitted to living with the victim on a sporadic basis after meeting her at Herzog," H-E-R-Z-O-G, "an inpatient drug rehabilitation program. He admitted that he had a .32 caliber handgun, but it was only an antique handgun. He claimed he was home all day on the day of the shooting and was not drinking. He also claimed he did know the victim was pregnant.
He reported his relationship with her ended when he had an argument with the victim and when her cousins had beat him. He claims he assured the victim he would press charges against her or her cousins in spite of the fact he was hospitalized. During another interview with Love, a request was made for the truth.
Love's response was, 'Request for the truth? Okay, I'll confess. She told me to come over and get the rest of my stuff. I called her about 9 p.m. She asked me to come and get the rest of my things. I asked, 'is this another game?' She said, 'No, just come over and get the rest of your shit'. I went up the back steps. The door was open. She threw my shirt and underwear at me. She spit at me and tried to kick me. I fired once or twice and then left. I slipped down the stairs. I got up and started walking, and she was still hollering. I had been drinking quite a bit that day. I went by bus to her house and went back to my house by bus. I threw two shells away and put two live shells in the gun'.
As to prisoner's version in the aforementioned board report, which I believe I did not indicate but, was prepared by P. Dupass, D-U-P-A-S-S, Correctional Counselor I. As to prisoner's version, on page 2, "Love was interviewed on June 18th 2001. Love produced this statement.
'On May 8th 1990, about 9:30 or 10 p.m., I was asked by Pat over the phone to come and get the remaining things that she forgot to give me earlier. As we talked, I asked her if there would be any problem. Her answer was 'No'. I must admit I was drinking a bit, and I truly forgot about the restraining order when I went to her apartment.
During the time we lived together I would carry a gun at times. The night of the incident I was not carrying it to do harm to Patricia, because I cared for her even though we were no longer together. As I came up the stairs, and got to the top of the stairs, the door came open. She came out talking crazy. She threw a few clothes and other items at me. We got into a verbal argument.
As I was going back down the stairs, I was pushed, and I stumbled down the stairs. Out of anger, I shot up at the door not knowing that she was peeping out of the door, and she was hit in the forehead with the bullet. When the police picked me up in Berkeley, two days later, they took me to the Oakland Police Department for questioning.
At the beginning of the questioning, I started lying, because I didn't believe Patricia was injured. As the interview continued, I realized she's been killed, and she was also pregnant. The whole situation made me very sad, and it all seemed like a dream. In all honesty, this incident was an unintentional accidental shooting. But because of my mistakes, a person is dead as well as my child. I'm truly sorry for the victim, her family and my child.
And during an interview with Love, on April 13th, 2007, he stated his version remains the same.*fn1
After briefing was completed, the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Hayward v. Marshall.*fn2 At Docket No. 23 this Court entered an Order directing the parties to file supplemental briefs addressing the Hayward decision, in particular that "[t]he prisoner's aggravated offense does not establish current dangerousness 'unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state' supports the inference of dangerousness."*fn3 The Court also directed the parties to consider two Ninth Circuit Decisions applying Hayward.*fn4 Both parties have submitted supplemental briefing.
II. GROUNDS RAISED/DEFENSES
In his Petition, Love raises three grounds: (1) denial of parole violated his plea agreement; (2) denial of parole is not supported by "some evidence"; and (3) the Board regulation regarding parole plans violates the Administrative Procedures Act and due process of law. The State has not raised any affirmative defense.*fn5
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn7 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn8 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn10 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn11 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn12 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn13 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn14
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn15 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn16 This ...