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 challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for one year at his third parole consideration hearing held on April 19, 2007. 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 against him in the Los Angeles County Superior Court in 1988. In that case, a jury had found petitioner guilty of three counts of kidnap for robbery, in violation of California Penal Code § 209(b), and three counts of robbery, in violation of California Penal Code § 211. It was also determined that petitioner was armed with and used a firearm in the commission of the crimes. (Answer, Ex. 1.) On March 22, 1988, petitioner was sentenced by the trial court to a state prison term of seven years to life with the possibility of parole, plus two years on the enhancement allegations. (Id.)
Petitioner's initial parole consideration hearing, held on September 5, 2001, resulted in a three-year denial of parole by the Board. (Case No. CIV S-05-1920 LKK DAD P, Memorandum of Points and Authorities attached to Pet., at 1).*fn1 Petitioner's next parole consideration hearing was held on February 26, 2004. (Case No. CIV S-05-1920 LKK DAD P, Answer, Ex. 2) On that date, a panel of the Board of Parole Hearings, then the Board of Prison Terms, found petitioner not suitable for parole and denied him parole for two years. (Id.) Petitioner's next parole hearing, which is placed at issue by the instant petition, was held on April 19, 2007. (Answer, Ex. 2 at Ex. C (hereinafter "Decision")). The Board at that time again found petitioner not suitable for parole and denied him parole for one year. (Id. at 94.)
Petitioner challenged the Board's April 19, 2007 decision in a petition for a writ of habeas corpus filed in the Los Angeles County Superior Court. (Answer, Ex. 2.) The Superior Court rejected petitioner's claims in a reasoned decision on the merits. (Id.)
Petitioner subsequently filed a petition for a writ of habeas corpus in the California Court of Appeal for the Second Appellate District, in which he raised the same claims that were contained in his habeas petition filed in the Los Angeles County Superior Court. (Answer, Ex. 3.) By order dated December 20, 2007, that petition was denied with citations to In re Rosenkrantz, 29 Cal.4th 616');">29 Cal. 4th 616, 667 (2002) and In re Dannenberg, 34 Cal. 4th 1061 (2005). (Id.)
On December 31, 2007, petitioner filed a "petition for review" in the California Supreme Court, raising the same claims that were set forth in his habeas petitions filed with the Los Angeles County Superior Court and the California Court of Appeal. (Answer, Ex. 4.) That petition for review was summarily denied by order filed March 12, 2008. (Id.)
At the April 19, 2007 parole suitability hearing the Board described the facts of petitioner's offense of conviction as follows:
On July the 2nd, the [sic] 1986, at approximately 7:30 a.m. the victim, Victor, was delivering gas to a gas station. Wilmont's co-defendant, Bell, wearing a bandana over his face and dark glasses, approached the right side of the truck. As Victor attempted to exit the driver's door Wilmont pushed the door closed, keeping him in the cab. Bell entered the cab through the passenger door. Once inside, he pointed a gun at Victor and told him to 'back out and head west on 210.' As the tanker approached Highway 2, Victor was told to get into the back sleeper of the truck and lay down. Bell then tied Victor's hands behind his back to his belt loop, blindfolded him and stated 'lay there.' Bell then took control of the tanker and continued west on 210 Freeway for approximately 10 to 15 minutes. He then exited the freeway and stopped. Wilmont had been following in another vehicle, and after unloading the gasoline, Bell drove back on to the freeway and stopped, leaving the tanker. Victor was able to free himself and return to the tanker. On August 2nd, 1986, at approximately 2:50 a.m., the victim, Hastings was delivering gasoline to a gas station. Upon arrival, Hastings walked to the rear of the location to collect the payment for the gasoline. As he walked back to the front, he passed a dumpster. Subject number one jumped out from behind the dumpster and pointed a steel revolver at his face. He was then ordered to drop the payment box, put his hands behind his head, and stand up against the wall. Hastings was then ordered into the front passenger seat of the truck. Subject number two sat in the driver's seat and told him 'don't try to get out and don't leave the truck.' Subject number two asked Hastings when his shift was over, and he replied that he was an hour late. Upon hearing this, subject number two stopped the truck and waited for subject number one, who was following in another vehicle. Subject number two sold [sic] subject number one that the victim was running late on his run and they should forget about stealing the truck and trailer. Subject number one replied, 'we've gone this far. We're not stopping.' Hastings was then taken out of the truck and placed in the vehicle with subject number one. While subject number one drove the car, subject number two followed behind in the tanker truck. The truck and the tanker trailer were later recovered. Although his identity was not specified, subject number two's actions are consistent with Wilmont's previous agencies [sic] in other counts.
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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
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). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). 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); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 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 not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner claims that the Board's failure to find him suitable for parole at his April 19, 2007, hearing violated his right to due process because the record before the Board did not contain sufficient evidence that he would pose an unreasonable risk of danger to the public if released. (Pet. at consecutive pgs. 4-7.) Petitioner emphasizes specific factors which indicate he is suitable for parole, such as his lack of a significant prison disciplinary record, psychological evaluations which opine that his risk of ...