The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Benson Robert Neal, Jr., a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Neal is presently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered, and Neal has replied.
I. BACKGROUND/PRIOR PROCEEDING
In April 1983 Neal was convicted in the Stanislaus County Superior Court of first degree murder, burglary, and robbery. The trial court sentenced Neal to an indeterminate prison term of 25 years to life. Neal does not contest the validity of his conviction or sentence in these proceedings.
On May 5, 2005, Neal made his second appearance before the California Board of Prison Terms (now Board of Parole Hearings, hereinafter "Board"). The Board denied Neal parole for a period of three years. Neal timely sought a writ of habeas corpus in the Stanislaus Superior Court, which denied his petition in a reasoned decision. A subsequent petition for habeas relief was summarily denied without opinion or citation to authority by the California Court of Appeal and the California Supreme Court summarily denied review on January 18, 2006. Neal timely filed his petition for relief in this court on April 6, 2006.
On January 9, 2009, further action in this case was stayed pending the issuance of the mandate by the United States Court of Appeals for the Ninth Circuit in Hayward v. Marshall, 512 F.3d 536, rehr'g en banc granted, 527 F.3d 797 (9th Cir. 2008), Case No. 06-55392. The Court of Appeals has rendered its decision in Hayward,*fn2 and the court now terminates its stay and decides the case.
II. ISSUES RAISED/DEFENSES
Neal raises two grounds for relief: (1) the Board's suitability hearing did not comply with the applicable California Penal Code and Code of Regulations in that the presiding commissioner was biased; and (2) his due process rights under the Fourteenth Amendment were violated because the denial of parole was based upon the nature of the crime, which is insufficient under the "some evidence" standard. Respondent asserts no affirmative defenses.*fn3
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn6 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn9 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn10 In a federal habeas proceeding, the standard under which this court must assess the prejudicial impact of constitutional error in a state court criminal proceeding is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn11 Because state court judgments of conviction and sentence carry a presumption of finality and legality, Neal has the burden of showing by a preponderance of the evidence that he merits habeas relief.*fn12
In applying this standard, this court reviews the last reasoned decision by the state court.*fn13 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn14 This presumption applies to state trial courts and appellate courts alike.*fn15
Ground 1: Participation of Presiding Commissioner Fisher
Neal argues that because Presiding Commissioner Fisher had a crime victims' advocate background, she was necessarily biased in his case. Neal further contends that Presiding Commissioner Fisher's occupational background did not comply with the requirements of California Penal Code, § 5075.*fn16 Neal does not provide any factual support for what are, in essence, nothing more than conclusory statements. Neal has not carried his ...