FINDINGS AND RECOMMENDATIONS
Petitioner, Donald Sabados, 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 an indeterminate sentence of fifteen years to life following his 1983 conviction in Los Angeles County Superior Court for second degree murder. Here, Petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence, and specifically, the January 25, 2007 decision by the Board of Parole Hearings (the "Board") finding him unsuitable for parole. Upon careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.
Petitioner alleges six grounds for relief in his pending petition. Specifically, Petitioner's claims are as follows:
(1) He has a liberty interest in parole that is protected by the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution;
(2) No evidence in the record supports the Board's determination that he is unsuitable for parole under the California Code of Regulations*fn1 or recent court decisions;
(3) No evidence in the record supports the Board's determination that he is unsuitable for parole, and there is no rational nexus between the evidence cited by the Board and ultimate decision reached at his hearing.
(4) He meets seven of the nine circumstances tending to demonstrate parole suitability under the California Code of Regulations and cannot comply with those circumstances to any greater degree.
(5) The Board's decision to deny parole for five years was unjustified because it was not supported by any evidence in the record demonstrating that he was unlikely to be deemed suitable for parole at an earlier time.
(6) The Board's consideration and treatment of his commitment crime violates the terms of his plea agreement.
Read together, Petitioner's first four grounds for relief constitute a claim that Petitioner's federal right to Due Process was violated by the Board's determination that he was not suitable for parole, and they will be examined in subsection (A). Subsection (B) will discuss Petitioner's fifth claim that the Board's decision to deny parole for five years was unjustified. Subsection (C) will address Petitioner's sixth and final claim that the Board's consideration and treatment of his commitment crime violates the terms of his plea agreement.
The basic facts of Petitioner's commitment crime were summarized by the Presiding Commissioner at Petitioner's parole hearing as follows:
The crime occurred at the victim's residence on June 26th, 1982. The victim was Walter Johnson, a 67-year-old man. The victim's death occurred during the commission of a burglary and a robbery. Sabados and his crime partner, Michael Lawrence Baker, entered the residence with the intent of stealing money and other items. The victim awoke and began to scream. Sabados acknowledged that he placed a pillow over the victim's head to keep him quiet.
The body was subsequently discovered a few days later. The autopsy report revealed that the cause of death was a coronary arteriosclerosis.
One of the items taken in the burglary was a shotgun. The gun was discovered under Sabados' bed at his residence.....
The victim in this matter is Walter Johnson, a person who was 67 years old at the time of his death. On June 26th, 1982, as alleged in count one, the crime occurring at his residence on that date where he was also the victim in counts two, three, and remaining.
The offense falls within the meaning of the felony murder rule, wherein the victim's death occurred during the commission of a burglary and a robbery. Following the investigation and the Defendant's apprehension, the Defendant was advised of his rights. He waived his rights and acknowledged culpability in the commission of the burglary that occurred on the indicated crime date, and suggested that he and the Co-defendant entered the location with the intent to steal primarily money and other items.
There was no intent to kill, and when the sleeping victim awoke and began screaming, the Defendant acknowledged that he placed a pillow over the victim's head to keep him quiet. The victim's body was subsequently discovered a few days later.
It was noted that the body had begun to decompose. Autopsy Report 82-8179 has the results of an examination conducted on July 2nd, 1982. It revealed that the cause of death was a coronary arteriosclerosis.
One of the items taken in the burglary was a certain shotgun. This firearm was subsequently located from where it was hidden, under the Defendant's bed, at his then residence. The Defendant verified that he had taken the shotgun, and that he was about to use it for hunting at the time he was arrested.
One of the purposes for the burglary was to obtain money for rent. The Defendant had been to the victim's residence previously, and had heard from others that the victim kept a lot of money within his home. At the time the victim was discovered, his arms and hands were tied.....
The Defendant acknowledged that the victim had been tied up. Other testimony by certain inmates who were housed with the Defendant in custody could have been offered at trial pertaining to certain 'bragging' they reportedly heard the Defendant give pertaining to the killing of 'the old man.' (Pet. Ex.B at 9-12, Transcript of Petitioner's Parole Hearing, January 25, 2007).
Petitioner waived his right to a jury trial and pled guilty to second degree murder on June 13, 1983. He received a sentence of fifteen years to life in prison. Petitioner's minimum eligible parole release date passed on August 12, 1991. On January 25, 2007, Petitioner appeared before the Board for his fourth subsequent parole suitability hearing. After considering numerous positive and negative suitability factors, the panel concluded that Petitioner remained an unreasonable risk of danger to society, and thus he was not suitable for parole. Petitioner then sought habeas corpus relief in the Los Angeles County Superior Court. On November 13, 2007, the court denied the petition, finding that the Board's determination that petitioner was unsuitable for parole was supported by some evidence in the record. Petitioner next sought relief in the state appellate court. The California Court of Appeal for the Second Appellate District denied the petition without comment. The California Supreme Court denied review. Petitioner filed this federal petition for writ of habeas corpus on February 6, 2009. Respondent filed an answer on April 2, 2009, and Petitioner did not file a traverse.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under the judgment of a state court may be granted only for violations of the federal Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief 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 ...