FINDINGS AND RECOMMENDATIONS
Petitioner Sledge is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner is currently serving an aggregate sentence of 32 years to life following his 1981 convictions for robbery and first degree murder in the San Diego County Superior Court. In the pending petition, petitioner presents a single claim challenging the execution of his sentence, and specifically, the decision of the Board of Parole Hearings after a June 3, 2008 hearing that he was not suitable for parole. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.
On August 26, 1980, petitioner robbed victim Harris as Harris attempted to enter his parked car at the Night Light Inn in National City. Petitioner came up behind Harris, put a knife to his back, and said "Get your hands up." Harris could feel the knife pressing against his back. Petitioner reached into Harris's back pocket, pulled out Harris's wallet, and ran away. Petitioner was arrested "based on a composite drawing of the perpetrator." At the time of his arrest, he was in a taxi cab. He had a knife and a cake cutter in his possession.
On September 12, 1980, petitioner spotted victim McNally, age 68, at a train depot. Petitioner watched McNally buy a train ticket and then followed him into the restroom. Petitioner robbed McNally of approximately $300 in cash and $1300 worth of traveler's checks. During the course of the robbery, petitioner stabbed McNally; McNally was transported to the hospital where he died approximately 5 hours later from cardiac arrest during surgery. A few days later, petitioner's girlfriend, whom he had been "pimping," provided police with information leading to petitioner's arrest.
Petitioner was received in prison on March 4, 1985. His minimum eligible parole date passed on December 20, 2000. On June 3, 2008, the Board of Parole Hearings ("Board") conducted a third subsequent (fourth overall) hearing to determine whether petitioner was suitable to be released on parole. A panel of the Board concluded that petitioner still posed an unreasonable risk of danger to the public, and thus that he was not suitable for parole.
Petitioner challenged the Board's denial of parole as a violation of due process in a petition for writ of habeas corpus to the San Diego County Superior Court; his claim was denied in a written decision dated October 16, 2008. The California Court of Appeal, Third District, denied relief in a brief written decision dated March 10, 2009. The California Supreme Court likewise denied petitioner's claim, but without written opinion.
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)).
Additionally, 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 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). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).
Petitioner presents a single ground for relief: that insufficient evidence supports the Board's June 3, 2008 decision to deny parole, in violation of his right to due process of law. 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 Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).
A protected liberty interest may arise from either the Due Process Clause itself or from state laws. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create for prisoners a protected liberty interest in receipt of a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). If a state's statutory parole scheme uses mandatory language, however, it creates "a presumption that parole release will be granted," thereby giving rise to a constitutional liberty interest. McQuillion, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 12 (1979)). California's statutory scheme for determining parole for life-sentenced prisoners provides, generally, that parole shall be granted "unless consideration of the public safety requires a more lengthy period of incarceration." Cal. Penal Code §3041. This statute gives California state prisoners whose sentences carry the possibility of parole a clearly established, constitutionally protected liberty interest in receipt of a parole release date. Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006)); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903; Allen, 482 U.S. at 377-78 (quoting Greenholtz, 442 U.S. at 12)).
Despite existence of this liberty interest, the full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. Greenholtz, 442 U.S. at 16.
Additionally, as a matter of California statelaw, denial of parole to state inmates must be supported by at least "some evidence" demonstrating future dangerousness. Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (en banc) (citing In re Rosenkrantz, 29 Cal.4th 616 (2002), In re Lawrence, 44 Cal.4th 1181 (2008), and In re Shaputis, 44 Cal.4th 1241 (2008)). California's "some evidence" requirement is a component of the liberty interest created by the state's parole system." Cooke v. Solis, 606 F.3d ...