FINDINGS AND RECOMMENDATIONS
Petitioner James J. Nichols is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner is currently serving a sentence of 7 years to life following his 1974 first degree murder conviction in the Alameda County Superior Court. Here, petitioner challenges the execution of his sentence, and specifically, the September 11, 2007 decision of the Board of Parole Hearings that he was not suitable for parole. Petitioner contests the Board's denial of parole on due process grounds. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied. The Board's 2007 decision to deny parole was supported by some evidence in the record and accordingly did not violate petitioner's right to due process of law.
The facts of petitioner's commitment offense were summarized by the Board at his 2007 parole suitability hearing:
On September 5th 1974, prior to 1200 hours, James Nichols left his office in Fremont, California and drove to... the victim's home in Newark. Once Nichols arrived, he waited for the victim to come home for lunch. When she arrived home at approximately 12:15 hours, Nichols and the victim entered the house together. It was later determined that while in the house, Nichols struck the victim in the head several times with a fireplace poker, removed her pantyhose she was wearing, and used them to strangle her to death. Nichols was observed by witnesses leaving the residence at approximately 12:50 hours. It was concluded that Nichols owed the victim several thousand dollars that he had borrowed over a period of time. On September 3rd 1974, Nichols gave the victim a worthless check for $12,000. The victim contacted her daughter when she realized the check was bad. At the crime scene, it was discovered Mrs. Moughon's purse had been pilfered. The check was missing and Nihcols' sunglasses were laid next to the purse.
Petitioner was convicted by jury of first degree murder and sentenced to a term of 7 years to life in state prison. His minimum eligible parole date passed in 1981. On September 11, 2007, 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 because he would pose an unreasonable risk of danger to society or a threat to public safety if released.
Petitioner challenged the Board's decision in a petition for writ of habeas corpus to the Alameda County Superior Court. The petition was denied on March 25, 2008. Subsequent petitions to the California Court of Appeal, First District, and the California Supreme Court were likewise denied.
III. 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).
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of ...