FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his third parole consideration hearing held on August 20, 2003. He claims that the Board's decision violated state law, his Fourteenth Amendment right to due process, and his Eighth Amendment right to be free from cruel and unusual punishment. Petitioner also claims that he was denied parole as a result of an unlawful "no-parole" policy and that the Board members were biased against him. Upon careful consideration of the record and the applicable law, the undersigned finds that petitioner's application for habeas corpus relief must be denied.
On April 20, 1987, after a court trial, petitioner was convicted of second degree murder. Answer, Ex. 1. He was sentenced to fifteen years to life in state prison. Id.; Pet. at consecutive p. 1.*fn1 Petitioner attended parole consideration hearings in 1996 and 1999, but was found unsuitable for parole at both hearings. Pet. at 4-19. The parole consideration hearing which is placed at issue in the instant petition was held on August 20, 2003. Answer, Ex. 4 (hereinafter "Decision"). On that date, a Board panel again found petitioner not suitable for parole and denied parole for three years. Id. at 101.
Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Ventura County Superior Court. Answer, Ex. 5. The Superior Court rejected petitioner's claims for the following reasons:
Petitioner's ground for the writ as stated above is the Parole Board's decision to deny petitioner parole status. Petitioner contends that this decision violated both Federal and State Constitutions and State law, and further, that the Parole Commissioners are biased.
Petitioner quotes at times, in his writ, a document that he identifies as (H.P.), such as, (2003 H.P. p. 59). This court makes the assumption that this is a transcript of the parole hearing and its findings. A brief recitation of selected portions of the hearing creates an insufficient record for this court to conclude that adequate grounds for relief have been shown. Petitioner should both state fully and with particularity the facts on which relief is sought as well as include copies of reasonably available documentary evidence supporting the claim. (People v. Duvall (1995) 9 Cal.4th 464.) For this reason, petitioner's application is denied.
The court further takes on a brief discussion of petitioner's claim that the Commissioners may not find that the murder of which he was convicted was an especially cruel, callous, and dispassionate killing because it was not a first degree murder. Petitioner is incorrect. Second degree murder still requires malice, and an intent to kill, and can be committed in a cruel, callous manner.
The petition could therefore fail on petitioner's assertion that the Commissioners were in error as a matter of law.
For the foregoing reasons, the petition is denied.
Id. (emphasis in original).
Subsequently, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Second Appellate District. Answer, Ex. 6. That petition was summarily denied by order dated April 1, 2008. Id. Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court, which was summarily denied by order dated March 16, 2005. Answer, Ex. 7.
On April 22, 2005, petitioner commenced this action by filing a federal petition for writ of habeas corpus.
The Board described the facts of petitioner's offense at the August 20, 2003 parole suitability hearing as follows:
On May 27th, 1986, at approximately 8:30 Ventura Sheriff deputies responded to the -- responded to the victim's residential farm. On approach they noticed the prisoner later identified -- Wynn, later identified as the prisoner, exit the residence. Responding deputies noted that Wynn appeared to display symptoms of being under the influence of cocaine or amphetamines as he appeared paranoid and nervous. While walking through the residence jointly occupied by the prisoner and the victim, a deputy opened up a previously closed door and immediately upon doing so, he smelled a strong, pungent odor which he suspected to be a dead body later identified as the victim. Upon the discovery, the prisoner was handcuffed, arrested, and placed in a parole unit -- or patrol unit. At autopsy, a medical examiner identified the contusions on the victim's back were consistent with the shape of a baseball bat. From lacerations on the back of the victim's head, it appeared that the victim had been struck at least three times on the head with a heavy, blunt object, possibly a lamp or a whiskey bottle. Broken fragments of glass were found at the crime scene. The cause of death was listed as trauma head injury.
Decision at 14-15.*fn2 Petitioner stated at the suitability hearing that he killed the victim by hitting him on the head with a bottle and a lamp during a heated argument after petitioner found the victim molesting a child in their home. Id. at 15-19.
A. Standards for a Writ of Habeas Corpus
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 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
Respondent argues that petitioner's claims are unexhausted because they were denied on procedural grounds by the California Superior Court and summarily denied by the California Court of Appeal and California Supreme Court. He contends that, under these circumstances, ...