FINDINGS AND RECOMMENDATIONS
Petitioner John Burnight is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Burnight challenges the September 15, 2004, decision by the Board of Prison Terms (hereinafter Board) finding him unsuitable for parole.
In the July 28, 2009, Case Reassignment Order, the District Judge assigned to this matter indicated that it may be prudent to await the Ninth Circuit's decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. May 16, 2008). This matter therefore may eventually be stayed pending that decision.
Burnight's habeas petition raises three claims as follow, verbatim:
A. Petitioner is entitled to release on parole because the Board of Parole Hearings decision to deny parole was not supported by any relevant, reliable evidence in the record in violation of petitioner's right to due process of law under the Fifth and Fourteenth Amendments and the California Constitution;
B. Petitioner is entitled to release on parole because the Board of Parole Hearings failed to afford him an individualized consideration of all factors relevant to parole decisions in violation of petitioner's right to due process of law under the Fifth and Fourteenth Amendments and the California Constitution; and
C. Petitioner is entitled to release on parole because the Board of Prison Hearings decision at the September 15, 2004 hearing was invalid because petitioner's term of imprisonment expired on June 14, 2004 when his presumptive release date passed without a subsequent parole consideration hearing being conducted.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that this petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
The Board recited the facts of Burnight's commitment offense as follows: PRESIDING COMMISSIONER RISEN: Okay. I'll go to the Probation Officer's report. It looks like it's about page three.
Early on the morning of June 30th, 1989, the defendant or prisoner went to the home of his friend, the victim, Steve and I'll spell the last name, Z-E-E-H-A-N-D-E-L-A-A-R. How do you pronounce that?
MS. CAMERON: Zeehandelaar.
PRESIDING COMMISSIONER RISEN: Zeehandelaar, thank you.
"The prisoner had with him a shotgun belonging to his grandfather. About a month before the incident, the prisoner had sawed off the barrel of the shotgun. According to information from the prisoner's girlfriend, the prisoner's grandmother - -" Wait.
"According to information from the defendant's girlfriend and defendant's grandmother, the prisoner had gone to the victim's home to confront the victim with misinformation that the victim had presented to the girlfriend. The victim lived about one and a half blocks away from the prisoner, who walked to the home. The prisoner put the gun in some bushes in front of the house and then went to the front door, where the victim answered the door and the prisoner spoke with him. The victim - - the defendant and the victim argued. The defendant then backed - - then went back to the house and picked up the double-barreled shotgun and returned to the front door. He shot one round directly into the victim's throat. The shotgun was apparently touching the victim's neck at the time it was fired. The victim's brother approached the front door and saw the defendant standing over the victim's body. The defendant ran to his girlfriend's house, told her what he had done, drove to Santa Rita, crashing into a post out - - just outside the office and told the deputies that he had just shot somebody. The victim was pronounced dead upon arrival at Eden, ED-E-N, Hospital."
Answer, Exhibit 2 at 12-14.
On January 13, 1993, Burnight pled guilty to second degree murder and on March 22, 1993, was sentenced to a term of 15 years to life. Answer, Ex. 1 at 2. On September 15, 2004, the Board held Burnight's Subsequent Parole Consideration Hearing. Answer, Ex. 2 at 2. At the conclusion of that hearing the Board found him unsuitable for parole. Id. at 63-68.
On December 17, 2004, Burnight filed a petition for writ of habeas corpus in the Alameda County Superior Court. That petition was denied in a short but reasoned opinion on January 12, 2005. Answer, Ex. 3 at 2. Burnight then filed a petition in the California Court of Appeal for the First Appellate District, which was summarily denied on March 1, 2005. Answer, Ex. 4 at 2. Burnight then filed a petition in the California Supreme Court. That petition was summarily denied on January 25, 2006, with citations to People v. Duvall, 9 Cal. 4th 464 (1995), In re Miller,17 Cal. 2d 734 (1941) and In re Rosenkranz, 29 Cal. 4th 616 (2002). Answer, Ex. 5 at 2. Finally, Burnight filed this federal petition on October 31, 2006.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
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. SeePeltier 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. SeeEstelle 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 denovo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). SeeLindh 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 ...