The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
By order, filed on July 26, 2010, following the en banc decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010), the stay in this matter imposed, since March 16, 2009, in an order noting the mutual consent of the parties to the stay pending resolution of Hayward, was lifted. By order, filed on July 30, 2010, this court ordered concurrent supplemental briefing regarding the effect of the decision in Hayward, supra, upon this case, which briefing has been filed. In addition, petitioner had earlier filed a notice of supplemental authority on April 28, 2008, to which respondent filed a reply on May 1, 2008; petitioner filed a corrected notice of supplemental authority on May 2, 2008, to which respondent filed a response on the same day.
Petitioner, a state prisoner having initially proceeded pro se, has subsequently been proceeding with appointed counsel, on his amended petition,*fn2 pursuant to 28 U.S.C. § 2254, challenging the October, 2003 decision of the California Board of Parole Hearings (BPH),*fn3 at his third parole suitability hearing, which became final in January of 2004,*fn4 finding him unsuitable for parole.*fn5 Docket # 4-6, pp. 34-115. Petitioner was convicted in Alameda County Superior Court of first degree murder by a jury, on March 18, 1982, and sentenced, on May 3, 1982, to a term of 25 years to life. Docket # 1, Amended Petition (AP), p. 15, citing Exhibit (Ex.) BB [Doc. # 4-3, p. 10], Abstract of judgment;*fn6 Answer, Ex. 1. The jury found that petitioner did not personally inflict great bodily injury upon the murder victim. Id.
At his initial parole consideration hearing on October 26, 1995, petitioner was denied parole for three years. AP, p. 20, Exs. MM (petitioner's copy of 1995 parole hearing transcript) & MM-1, Doc. # 4-5. Petitioner points out that he agreed to talk and respond to questions and avers that he answered each question of the panel. AP, p. 20, Ex. MM, Doc. # 4-5, p. 15. Respondent observes that denial was based primarily on the commitment offense, but also on petitioner's dysfunctional family atmosphere and prior social problems with women friends, BPH also noting that petitioner's psychological reports were not all wholly supportive of release as his obsessive compulsive traits did not indicate he would not behave differently if released. Answer, p. 2, Ex. # 3, Doc. # 29-2 & #29-3 (1995 parole hearing transcript), pp. 28-29. The panel did also commend petitioner for excellent programming, remaining disciplinary-free, participating in therapy and self-help programs and for having completed his Master's degree in 1991. See Doc. # 29-3, pp. 27-28. BPH determined petitioner's minimum eligible parole date to be February 16, 1994. AP, p. 20, Ex. MM-2, Doc. # 4-5.
At the second (or first subsequent) parole consideration hearing on September 15, 1998, petitioner again answered all panel questions. AP, p. 22; Answer, Ex. 4, Doc. # 29-4, p. 9 & # 29-5 (1998 parole hearing transcript). Petitioner was denied parole for four years. Answer, p. 2, Ex. 4, Doc # 29-5. Respondent notes that the denial was based principally on the commitment offense, but also on petitioner's unstable social history (again), and on the fact that he stalked a former girlfriend who had broken up with him, on a recent unfavorable psychological report and a serious disciplinary action (disrespectful of staff). Id., at 28-31. Petitioner notes that the correctional counselor's life evaluation report for this hearing indicated that with the exception of the single rules violation report, petitioner had been disciplinary-free and programmed exceptionally well. AP, p. 20-21, Ex. NN, Doc. # 4-5, p. 82.
The third (or second subsequent) parole consideration hearing was initially held on September 16, 2002, wherein the panel recommended a three-year parole denial, but due to apparently malfunctioning recording equipment, "a significant portion of the hearing" could not be transcribed and that hearing decision was disapproved. AP, p. 25, Ex. II-A; Answer, p. 2, Ex. 5, Doc. # 29-6 (2002 parole hearing transcript), Ex. 6, Doc. # 29-7 (2002 decision disapproved).
At the re-held third parole (or second subsequent) parole consideration hearing on October 28, 2003, the one at issue herein, petitioner chose not to discuss the circumstances of his offense. AP, p. 27, Ex. UU (petitioner's copy of the 2003 parole hearing transcript), Doc. # 4-6, p. 26 (although he was sworn in and made some comments at certain points). Petitioner notes that the 2003 BPH panel stated that the "paramount reasoning" in denying him parole for three more years was the "timing and gravity of the committing offense" with other information bearing on the decision being that petitioner's correctional counselor Belancik had written petitioner would pose an "unpredictable degree of risk" to the public if released. Doc. # 4-6, pp. 107, 109. Respondent concedes that the gravity of the offense was the primary basis for the finding of unsuitability, but contends the panel also relied on a history of unstable relationships, the prior stalking incident, petitioner's alleged experimentation with drugs, numerous letters in opposition to parole and opposition of the victim's family and the district attorney's office, determining that petitioner needed to continue to maintain positive gains. Answer, pp., 3-4, citing Ex. 8 (2003 parole hearing transcript).
Petitioner raises the following claims alleging violation of his federal due process rights: 1) by parole authority's arbitrary and continued reliance on unchanging factors; 2) by parole authority's decade-long policy of rejecting parole application of every male prisoner serving a sentence of 25 years to life for first degree murder; 3) by parole authority's policy of systematically characterizing first degree murder as sufficiently exceptional to warrant denial of parole; 4) because parole authority's decision to deny parole was based on findings (a) not supported by the requisite evidence and/or (b) otherwise arbitrary and/or (c) discriminatory under the Americans with Disabilities Act; 5) by the parole authority's failure to give his parole application constitutionally adequate individualized consideration; 6) because the parole authority was not sufficiently neutral and detached, but rather systematically biased in its decision-making. Claim 7 is that petitioner's federal equal protection rights were violated. Amended Petition (AP), pp. 12, 36.
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue.
Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Petitioner presents arguments against the applicability of the above deferential standards of AEDPA in the context of a parole denial challenge on the ground that his challenge is to the decision of an administrative body rather than the judgment of a state court. Traverse, pp. 8-12. Averring that the Ninth Circuit has not ruled on the issue, petitioner cites McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002), wherein he notes*fn7 that the question of whether the AEDPA standard of review applied to a prisoner's challenge to a BPH rescission of a parole date was not resolved:
McQuillion is a "person in custody pursuant to the judgment of a State court," but he is not challenging anything that happened during the trial that led to his conviction and sentence. Nonetheless, it is possible that, because his claim of a due process violation by the state parole authority was heard by state courts on collateral review, that claim has been "adjudicated on the merits in [a] State court proceeding" within the meaning of AEDPA.
McQuillion, supra, 306 F.3d at 901. The undersigned observes that while therein the issue remained unresolved, the panel assumed, without deciding, the deferential AEDPA standards did apply. Id. In further support of his argument, petitioner cites an out-of-circuit case, Cox v. McBride, 279 F.3d 492 (7th Circuit 2002), which held that the 28 U.S.C. § 2244(d), the AEDPA statute of limitations, is not applicable to a federal habeas petition challenging a prison disciplinary determination. Traverse, p. 32. However, petitioner also notes the contrary position held by this circuit, Shelby v. Bartlett, 391 F.3d 1061, 1062 (9th Cir. 2004),*fn8 wherein the Ninth Circuit expressly joined the Second, Fourth and Fifth Circuits in holding that the AEDPA one-year statute of limitations "applies to all habeas petitions filed by persons in 'custody pursuant to the judgment of a State court,' 28 U.S.C. § 2244(d)(1), even if the petition challenges a pertinent administrative decision rather than a state court judgment." Shelby, supra, 391 F.3d at 1063.
Petitioner nevertheless encourages this court (traverse, pp. 9-10 ) to follow the rationale of Rosas v. Nielsen, 428 F.3d 1229, 1222-1233 (9th Cir. 2005) (per curiam), wherein the Ninth Circuit reasoned, within the context of a habeas challenge to a BPH parole denial, that a certificate of appealability was not necessary because the "target" of the petition was the decision of an administrative body and not a state court judgment. In Rosas, the circuit court relied on its decision in White v. Lambert, 370 F.3d 1002 (9th Cir. 2004), wherein the language of 28 U.S.C. § 2253(c)(1)(A) requiring a petitioner to obtain a certificate of appealability to appeal a final order when "the detention complained of arises out of process issued by a State court....," was construed "to hold that a certificate of appealability 'is not required when a state prisoner challenges an administrative decision regarding the execution of his sentence.'" Rosas, 428 F.3d 1231, quoting White, 370 F.3d at 1010. However, in its recent en banc decision in Hayward, the Ninth Circuit expressly overruled: those portions of White and Rosas which relieve a prisoner from obtaining a certificate of appealability from administrative decisions such as denial of parole and prison transfer. A certificate of appealability is necessary to confer jurisdiction on this court in an appeal from a district court's denial of habeas relief in a § 2254 case, regardless of whether the state decision to deny release from confinement is administrative or judicial. Hayward needs a certificate of appealability if we are to maintain jurisdiction over this case.
Hayward, supra, 603 F.3d at 554. Therefore, the authority for petitioner's contention that the deferential AEDPA standard should not apply in this context has been definitively overruled.
See also Cooke v. Solis, 606 F.3d 1206, 1212-1213 (9th Cir. 2010) (federal habeas petitioner must obtain certificate of appealability to invoke federal appellate jurisdiction for petition challenging denial of parole; AEDPA standards apply to review of such a petition filed post-AEDPA).
Claims 1, 4 and 5: Parole Authority's Arbitrary and Continued Reliance on Unchanging Factors Violates due Process*fn9
Petitioner contends that in finding him repeatedly unsuitable for parole BPH has relied for a decade on unchanging (or immutable) factors. AP, p. 48. He asserts that he has been described as a model prisoner, has been found to have "programmed exceptionally well," and to have continued to comply with the BPH's requirements. Id. Moreover, petitioner avers that California Department of Corrections (and Rehabilitation) (CDCR) psychologist Dr. Raymond Crawford has found petitioner's current adjustment to appear "optimal," concluding that his risk of violence is "very low at this time," and that he unqualifiedly "would not pose a danger to the community." Id., Ex. RR, Doc. # 4-6, Psychological Evaluation for the Board of Prison Terms, dated July 1, 2002, pp. 19-27. Petitioner also contends that prior to BPH's decision having become final, that he had already served more time than he could have been assessed for his conviction offense pursuant to CAL. CODE REGS. tit.xv, § 2403 (or § 2282(b)). Id. Thus, he maintains, BPH's continued reliance on the immutable factors of his offense and conduct prior to imprisonment is "otherwise arbitrary," per Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 2775 (1985) and violative of petitioner's due process rights. Id. at 49, citing, inter alia, Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th Cir. 2006).
Respondent maintains that the BPH's decision is supported by "some evidence," a standard which is "'minimally stringent,'" with "the relevant question" being "whether there is any evidence in the record that could support" the BPH's conclusion. Answer, pp. 6, 12, citing Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994), and Hill, supra, 472 U.S. at 455-456, 105 S.Ct. 2768. Respondent also contends that the BPH's reliance on the commitment offense and "other 'so-called' unchanging factors" to deny parole for a third time was proper. Answer, p. 13-14.
The Ninth Circuit has set forth the standards which govern review of denial of parole eligibility cases when the issue centers on whether there was "some evidence" that a potential parolee would constitute a present danger to public safety. Under the traditional analysis prior to Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), the Ninth Circuit parole eligibility cases determined first that the California parole eligibility statute created a federal liberty interest, and then determined the process due from a federal perspective. See e.g., Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir 2003) determining that Cal. Penal Code § 3041's "mandatory" language created the federal interest. Forsaking the previous analysis, Hayward focused on one facet of the process due under state law -- "some evidence" -- and held that this facet of due process itself created the authority of the federal courts to adjudicate in habeas jurisdiction, which facet did not even have to be federally derived, i.e., that the federal courts could enforce the state standard in the first instance. Hayward further demurred from finding that a federal liberty interest in application of the "some evidence" standard was created:
[C]courts in this circuit...need only decide whether the California judicial decision approving...the decision rejecting parole was an "unreasonable application" of the California "some evidence" requirement, or was based on an unreasonable determination of the facts in light of the evidence.
Hayward v. Marshall, 603 F.3d at 562-563 (emphasis added). See also Pearson v. Muntz, 606 F.3d 606 (9th Cir. 2010) (per curiam); Cooke v. Solis, supra, 606 F.3d 1206.*fn10
First, the undersigned determines that a record review of a state habeas decision based on "some evidence" as the controlling factor is a question of law subject to AEDPA deference under § 2254(d)(1). Hayward provided for such a review in its alternative analysis of the standards of review quoted above. Secondly, and significantly, review of a record to determine if an evidentiary standard has been met, e.g., "some evidence," "sufficient evidence," "substantial evidence," has almost invariably been considered a question of law. See John Kelly v. C.I.R., 326 U.S. 521, 528 (n.7), 66 S.Ct. 29 (1946); Abrams v. United States, 250 U.S. 616, 619, 40 S.Ct. 17 (1919); United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir. 1989); Suetter v.United States, 140 F.2d 103 (9th Cir. 1944); In re Lazor, 172 Cal.App.4th 1183, 1192 (2009).
Secondly, because the Ninth Circuit has commanded a review of the state's application of its law in this parole eligibility habeas context, despite its incongruity in other habeas settings, the guiding definitions of what is entailed by "some evidence" must be found in state law. With later "clarification," that standard is defined by In re Rosenkrantz, 29 Cal.4th 616');">29 Cal. 4th 616, 677, 128 Cal.Rptr.2d 104');">128 Cal. Rptr. 2d 104 (2002): "Only a modicum of evidence is required." It is "[i]rrelevant...that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole." Because some state (and federal) courts had "misinterpreted" Rosenkrantz to require only that some evidence exist disfavoring parole in any of the eligibility factors to be considered, and that the original commitment offense itself could be the total "some evidence" if the offense exhibited characteristics "more than minimally needed to convict for the offense," In re Lawrence, 44 Cal. 4th 1181, 82 Cal.Rptr. 3d 169 (2008), clarified that the "some evidence" had to be related to the overarching requirement of safety to the community. Id. at 1191 and 1212. Moreover, immutable circumstances, such as the nature of the offense, could not qualify as "some evidence" unless there was something else in the record indicating that those circumstances would presently be predictive of dangerousness if released. Id. at 1221. Finally, a BPH "hunch or intuition" was insufficient to stand as "some evidence."
Under California law, prisoners serving indeterminate prison sentences "may serve up to life in prison, but they become eligible for parole consideration after serving minimum terms of confinement." In re Dannenberg, 34 Cal.4th 1061, 1078, 23 Cal.Rptr.3d 417, 104 P.3d 783, (2005). Generally, one year prior to an inmate's minimum eligible parole release date, BPH will set a parole release date "in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public...." In re Lawrence, 44 Cal.4th at 1202, 82 Cal.Rptr.3d 169 (citing Cal.Penal Code § 3041(a)) [emphasis in Lawrence]). A release date will not be set, however, if BPH determines "that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration...." Cal. Penal Code § 3041(b).
As a matter of state constitutional law, denial of parole to California inmates must be supported by "some evidence" demonstrating future dangerousness. Hayward, 603 F.3d at 562 (citing In re Rosencrantz, 29 Cal.4th 616, 128, 128 Cal.Rptr.2d 104 (2002)); see also In re Lawrence, 44 Cal.4th at 1191, 82 Cal.Rptr.3d 169 (recognizing the denial of parole must be supported by "some evidence" that an inmate "poses a current risk to public safety"); In re Shaputis, 44 Cal.4th 1241, 1254, 82 Cal.Rptr.3d 213 (2008) (same). "California's 'some evidence' requirement is a component of the liberty interest created by the parole system of [the] state," Cooke v. Solis, supra, 606 F.3d at 1213, and compliance with this evidentiary standard is, therefore, mandated by the federal Due Process Clause. Pearson v. Muntz, supra, 606 F.3d at 611. Thus, a federal court undertaking review of a "California judicial decision approving the ... decision rejecting parole" must determine whether the state court's decision "was an 'unreasonable application' of the California 'some evidence' requirement, or was 'based on an unreasonable determination of the facts in light of the evidence.'" Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(2)).
When assessing whether a state parole board's suitability decision was supported by "some evidence," the analysis "is framed by the statutes and regulations governing parole suitability determinations in the relevant state." Irons v. Carey, 505 F.3d at 846, 851 (9th Cir. 2007).*fn11 The court must look to California law to determine what findings are necessary to deem a petitioner unsuitable for parole, and then must review the record to determine whether the state court decision holding that these findings were supported by "some evidence" constituted an unreasonable application of the "some evidence" principle. Id.
Title 15, Section 2402 of the California Code of Regulations sets forth various factors to be considered by BPH in its parole suitability findings for murderers. The regulation is designed to guide BPH's assessment regarding whether the inmate poses an "unreasonable risk of danger to society if released from prison," and thus whether he or she is suitable for parole. In re Lawrence, 44 Cal.4th at 1202, 82 Cal.Rptr.3d 169. BPH is directed to consider all relevant, reliable information available, including the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. 15 Cal.Code Regs. § 2402(b).
The regulation also lists several specific circumstances which tend to show suitability or unsuitability for parole. CAL. CODE REGS. tit.xv, § 2402(c)-(d). The overriding concern is public safety, In re Dannenberg, 34 Cal.4th 1061, 1086, 23 Cal.Rptr.3d 417 (2005), and the focus is on the inmate's current dangerousness. In re Lawrence, 44 Cal.4th at 1205, 82 Cal.Rptr.3d 169. Thus, under California law, the standard of review is not whether some evidence supports the reasons cited for denying parole, but whether some evidence indicates that a parolee's release would unreasonably endanger public safety. In re Shaputis, 44 Cal.4th 1241, 1254, 82 Cal.Rptr.3d 213 (2008). Therefore, "the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public." In re Lawrence, ...