FINDINGS AND RECOMMENDATIONS
Petitioner Thomas Jackson is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner is currently serving a sentence of life with the possibility of parole following his 1978 first degree murder conviction in the Orange County Superior Court. Here, petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence, and specifically, the May 8, 2008 decision of the Board of Prison Terms that he was not suitable for parole. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.
The basic facts of petitioner's life crime were set forth by the Orange County Superior Court on review of his state petition for habeas corpus:
In 1978, Petitioner was found guilty by a jury of first degree murder, attempted murder and burglary with great bodily injury. Petitioner and three others had gone into an apartment and attacked one male victim by beating him over the head with a pistol. The victim broke free and attempted to escape whereupon he was captured and stabbed to death by Petitioner. The victim sustained approximately 35 stab wounds. The group bound and gagged a second victim, a female. [Petitioner] slashed her throat several times and [his crime partners] stabbed her in the back five or six times. She survived. The perpetrators then left the apartment, taking with them two other people and one six-year-old boy. Petitioner was 19 years old at the time of the crimes. He was sentenced to life with the possibility of parole. (Pet., Ex. 27 at 1.)
Petitioner's minimum eligible parole date passed on April 7, 1984. On May 8, 2008, a panel of the Board of Prison Terms ("Board") conducted a hearing to determine petitioner's suitability for parole and concluded that he was not suitable for parole.
Petitioner challenged the Board's decision in the Orange County Superior Court; his claims were denied in a written decision dated October 13, 2008. The California Court of Appeal, Fourth District, summarily denied petitioner's claims on appeal, and the California Supreme Court denied review.
Petitioner contends that the Board's 2008 decision was unsupported by any relevant, reliable evidence in the record and was arbitrary in violation of his right to due process of law. He also contends that his due process rights were violated because the Board violated the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), by improperly extending his term beyond the statutory minimum. Finally, petitioner claims that the Board acted in excess of its authority granted under the California Penal Code.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).