The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with appointed counsel, brings these petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. These two cases have been related for all purposes. Pending before the court are Petitioner's petitions for writ of habeas corpus (Docs. 1; 1), Supplemental briefs (Docs. 20; 14), Respondent's answers (Docs. 24; 15), and Petitioner's traverses (Docs. 27; 16).
Petitioner pleaded guilty to second degree murder and was sentenced on January 25, 1985, to a term of 15 years to life, plus two years for use of a weapon. He had his initial parole consideration hearing in 1991. Since then, he has had eight subsequent parole consideration hearings (1993, 1995, 1997, 1999, 2002, 2003, 2005, and 2007). Petitioner was denied a parole date at each of these hearings. On April 4, 2005, the Board of Prison Terms ("Board") denied Petitioner a parole release date for two years.*fn1 The 2005 parole denial is the subject of the current petition. Petitioner then appeared before the Board in 2007, and was again denied a parole date for another year.
In it's 2005 decision, the Board denied Petitioner parole for two years citing the following reasons: (1) the facts of Petitioner's commitment offense; (2) Petitioner's escalating pattern of criminal activity, centered around drugs; (3) Petitioner's prison disciplinaries (recent 115); and (4) Petitioner's parole plans. Petitioner was commended for his education, vocational activity, and self-help programing. However, the Board found that those positive factors did not outweigh the factors of unsuitability. Specifically, the Board noted: the crime was carried out in an especially cruel and callous manner. You basically entered into a drug deal with the victim and you shot and killed him and you took him out and you buried [him] in the desert, the bottom line. And then after you were arrested and while you were on - - you were able to make bail, you took off to Washington State and tried to forger your life until you were turned in. The offense was carried out in a dispassionate and calculated manner and it appears from reading the facts that it was calculated.
The offense was carried out in a manner that demonstrates an exceptionally callous disregard for another human being. To shoot an individual over drugs, cocaine, surely that shows a callous disregard for human life. The motive for the crime was inexplicable. Anytime there's a killing or shooting over drugs that's inexplicable behavior and it's very trivial. That's a trivial way for someone to lose their life over something as trivial as drugs.... That recent 115, serious 115, for weapons stock in prison certainly had - - weighed heavy on the Board. The recent psychological evaluation shows that the prisoner is making progress, seems that he's keeping on the right track. The prisoner has not completed the necessary programming which is essential to his adjustment and needs additional time. The Panel recommends that the prisoner continue to participate in positive kinds of programs. And first of all you need to become disciplinary free and remain disciplinary free and not even a 128(a) write-up...."
(Board Decision at 5-7 (Answer, Doc. 24, Ex. 2, at 75-77)).
Petitioner filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court challenging the 2005 denial of parole. In a decision denying the petition, the state court found there was "some evidence" that Petitioner was unsuitable for parole, stating An inmate may be unsuitable for parole if the motive for the life crime was "inexplicable or very trivial." Here, petitioner explained he shot the victim over money and drugs. Thus, the motive is not inexplicable. A motive is "very trivial" when it is materially less significant than other reasons that conventionally drive people to commit second-degree murder. While killing over money may not be "very trivial," killing for drugs is a materially less significant reason than others that drive people to commit murder. As such, there is "some evidence" that motive was "very trivial." An inmate may also be unsuitable for parole if the crime was carried out in a "calculated" manner. The fact that petitioner shot the victim for money and drugs, muffled the shots, and secreted the body, is "some evidence" the crime was carried out in a calculated manner....
An inmate may be unsuitable for parole if he has engaged in "serious misconduct" during his incarceration. The record reflects petitioner has received three 115 disciplinary violations during his incarceration. The most recent was in 2002 for possession of dangerous contraband. Thus, there is "some evidence" he is unsuitable because of institutional misconduct. (Answer, Doc. 24, Exhibit 5).*fn2
Subsequent habeas petitions challenging the denial of parole were denied by the California Court of Appeal, with a citation to In re Rosenkrantz, 29 Cal.4th 616, 667 (2002) and In re Dannenberg, 34 Cal.4th 1061 (2005), and the California Supreme Court, without comment or citation. Respondent concedes that Petitioner's claims are exhausted.*fn3
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism... do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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.
Thus, under § 2254(d), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412). "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 549 U.S. at 74.
In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406. If a state court decision is "contrary to" clearly established law, it is reviewed to determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal habeas relief is warranted. See id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id.
State court decisions are reviewed under the far more deferential "unreasonable application of" standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court decision is not an "unreasonable application of" controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). An "unreasonable application of" controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous. See Lockyer, 538 U.S. at 75-76. This is because "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) ...