The opinion of the court was delivered by: Timothy M. Burgess United States District Judge
Petitioner James Grisso, a state prisoner appearing through counsel, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Grisso is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at Deuel Vocational Institute. Respondent has answered and Grisso has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In July 1978 Grisso was convicted upon a guilty plea of murder in the first-degree in the Butte County Superior Court. The trial court sentenced Grisso to an indeterminate prison term of seven years to life. Grisso does not challenge his conviction or sentence in these proceedings.
In February 2004 Grisso appeared at a parole suitability hearing before the Board of Prison Terms, which granted him parole. In June 2004 the Governor reversed the decision of the Board. Grisso timely filed a petition for habeas corpus relief in the Butte County Superior Court, which denied his petition in an unreported, reasoned decision. Grisso's subsequent petition for habeas relief was summarily denied by the California Court of Appeal, Third District, without opinion or citation to authority. The California Supreme Court summarily denied review without opinion or citation to authority on March 26, 2006. Grisso timely filed his petition for relief in this court on April 24, 2006.
After the pleadings were complete and the issues joined, this Court stayed further proceedings in this action pending decision by the en banc panel of the United States Court of Appeals for the Ninth Circuit in Hayward.*fn1 The Ninth Circuit has issued its en banc opinion in Hayward;*fn2 therefore, the Court terminates the stay and decides the case.
II. GROUNDS RAISED/DEFENSES
Grisso raises eight grounds: (1) the Governor's finding that Grisso was unsuitable for parole is unsupported by sufficient evidence in the record; (2) denial of parole based upon the unchanging factor of the nature of the underlying commitment offense is contrary to Board regulations; (3) other grounds for determining unsuitability were unsupported by evidence; (4) the Governor's use of the underlying commitment offense and other outdated static factors rendered the Governor's decision arbitrary; (5) a finding of "some evidence" of unsuitability upon less than a preponderance of the evidence violates due process; (6) the gubernatorial review process denied Grisso his due process right of individualized review; (7) the 'some evidence" standard does not apply to the parole process; and (8) the governor's reversal breached the plea agreement and violated the Ex Post Facto Clause of the United States Constitution. Respondent contends that Grisso's fifth ground, preponderance of the evidence claim, is unexhausted and that the petition should be dismissed for lack of subject matter jurisdiction, i.e., presents no federal constitutional claim. Respondent further contends that Grisso's eighth ground is untimely. Respondent raises no other affirmative defense.*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 trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn11 Because state court judgments carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she 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
Respondent argues that Grisso's fifth ground, that the Governor's finding of unsuitability for parole is unsupported by a preponderance of the evidence was not presented to the state courts and is, therefore, unexhausted. This court may not consider claims that have not been fairly presented to the state courts.*fn16 In order to exhaust a claim, a petitioner must "fairly present" to the state supreme court both the legal and factual basis for the claim.*fn17 "[T]he petitioner must . . . provide the state court with the operative facts, that is, 'all of the facts necessary to give application to the constitutional principle upon which [the petitioner] relies.'"*fn18
This court also notes that it may deny a habeas claim on the merits the failure to exhaust notwithstanding,*fn19 when it is clear that the petition does not raise a colorable federal claim.*fn20 As discussed in subpart C, below, Grisso's fifth ground must be denied on the merits. Thus, ...