FINDINGS & RECOMMENDATIONS
Petitioner is a former state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2007 decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for one year at his fifteenth parole consideration hearing held on February 22, 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.
On October 14, 1976, an Alameda County Superior Court jury convicted petitioner of first degree murder with use of a firearm. (Pet. at 2; Answer, Ex. A to Ex. A.) Petitioner was sentenced to seven years to life in state prison. (Pet. at 2.)
The parole consideration hearing which is placed at issue by the instant petition was held on February 22, 2007. (Answer, Ex. A at Ex. D (hereinafter "Decision")). On that date, a Board panel found petitioner not suitable for release and denied parole for one year. (Id. at 52.)*fn1 Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Alameda County Superior Court. (Answer, Ex. A.) The Superior Court rejected petitioner's claims in a reasoned decision on the merits. (Answer, Ex. B.)
Subsequently, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District. (Answer, Ex. C.) That petition was summarily denied by order dated April 1, 2008. (Answer, Ex. D.) On October 17, 2007, petitioner filed a petition for review in the California Supreme Court. (Answer, Ex. E.) That petition was summarily denied by order dated June 11, 2008. (Answer, Ex. F.)
On July 28, 2008, petitioner commenced this action by filing a federal petition for writ of habeas corpus. On January 29, 2009, petitioner was released on parole. On January 30, 2009, respondent filed a motion to dismiss the instant petition, arguing that petitioner's release from prison rendered this action moot. That motion to dismiss was denied by order dated September 25, 2009.
The Board described the facts of petitioner's commitment offense at the February 22, 2007 parole suitability hearing as follows:
On February 19, 1975, a witness who lived in (inaudible) Street in (inaudible) heard five or six shots ring out not far from the house. That same morning, an officer arrived at the end of a dead end street, about a hundred yards away from her home and found the body of a young woman. The body was subsequently identified as Diane Deavers, age 24 years old. She was shot six times with a .38 caliber revolver. Police canvassed the area, couldn't locate a witness to the murder. Found near the body was a tan hat. A feather stuck out of the hat. The next day, a man named Leslie (inaudible) contacted the Alameda police. He reported to the police that he had reason to believe that his gun had been used to kill the victim. He had a .38 caliber revolver, unloaded, in his possession at a party at the home of Frank Stephenson, and is known as Williams, Diane Stephenson, the mother, who is the inmate and (inaudible) Williams, who is the Diane Stephenson's mother, it says [sic]. The party took place on the evening in the early morning hours. Other people were at the party, including the victim. The victim had from time to time had been romantically involved with the inmate, apparently. During the time of the party, Leslie (inaudible) got drunk. He showed the gun to Joanne Stephenson. She had a couple of bullets (inaudible). Apparently, the inmate and Deavers had a longstanding relationship, whether the relationship (inaudible) and there was an agreement between family members that she should die. The mother gave the inmate the weapon. The inmate and others put the young lady in the car and took her out and had a long conversation about how she was going to die. Subsequently the inmate shot and killed the victim. (Decision at 7-9.)
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 § 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 ...