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 three years at his ninth parole consideration hearing held on July 27, 2006. 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 in the Orange County Superior Court in 1989. (Pet. at 2.) On May 19, 1989, petitioner pled guilty to second degree murder, in violation of Cal. Penal Code § 187. (Id.) Petitioner was subsequently sentenced to serve a term of fifteen years to life in state prison. (Id.)
The parole consideration hearing which is placed at issue by the habeas petition pending before this court was held on July 27, 2006. (Answer, Ex. A at Ex. A (hereinafter "transcript".) On that date, a Board panel found petitioner not suitable for release from prison and denied parole for three years. (Id. at 51.)
Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Orange County Superior Court on March 20, 2007. (Answer, Ex. A.) That petition was denied in a reasoned decision dated May 29, 2007. (Answer, Ex. B.) Subsequently, petitioner challenged the Board's decision in a petition for a writ of habeas corpus filed in the California Court of Appeal for the Fourth Appellate District. (Answer, Ex. C.) That petition was summarily denied by order dated July 19, 2007. (Answer, Ex. D.) On July 30, 2007, petitioner filed a petition for review in the California Supreme Court. (Answer, Ex. E.) That petition was summarily denied by order filed October 10, 2007. (Answer, Ex. F.)
The Board described the facts of petitioner's commitment offense at his July 27, 2006 parole suitability hearing as follows:
On April 16, 1988, at approximately 9:56 a.m., officers from the Fullerton Police Department were dispatched to 1401 South Orange, #7 in Fullerton in response to a reported female body at the location. Responding officers made contact with witness, Scott Ray, son of the Defendant who stated that he had gone to his father's apartment due to concerns about comments his father had made to him earlier that morning. He wanted to check on his father and see if anything was wrong. When he arrived at the apartment, there was no answer to his knock so he opened the front door with a key that he had in his possession. Upon entering the apartment, he observed the victim's body laying in the hallway beneath a sheet. Witness Ray contacted police. Police observed that the victim had five apparent stab wounds and had been moved from the front room area to a hallway. Also noted were pieces of duct tape found on the victim's chest wound. Reportedly, the Defendant had fled the area. On May 18, on a bus destined for Las Vegas, Nevada, the Defendant stopped in Barstow, California where he turned himself in to authorities.
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). Title 28 U.S.C. § 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 argues that the Board's unfavorable suitability decision violated his right to due process because it was "without 'some evidence' that I am a current risk to public safety." (Pet. at 5.) Petitioner supports his claim with the following argument:
During my 20 plus years I have no serious write ups (115s). I have 2 forensic (psyche) reports indicating I am an excellent candidate for parole, and pose no risk to public safety. I have earned my G.E.D., college credits towards an A.A. degree, ministry certificate from Patten Bible College, and have earned 3 trade skills.
The Orange County Superior Court provided the last reasoned state court decision in response to petitioner's due process claim. That court concluded as follows:
Petitioner is currently serving an indeterminate term of 15 years to life in state prison with the possibility of parole following his 1989 guilty plea and conviction for the second degree murder of his girlfriend [Pen. Code, § 187].
The Board of Parole Hearings found petitioner unsuitable for parole following a July 27, 2006 subsequent parole consideration hearing. The Board determined that:
1. The commitment offense was carried out for a very trivial motive in an especially cruel, dispassionate and calculated manner demonstrating an ...