FINDINGS AND RECOMMENDATIONS
Petitioner, Tony A. Castleman, 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 1986 conviction in San Diego 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 18, 2008 decision by the Board of Parole Hearings (the "Board") finding him unsuitable for parole.
Petitioner sets forth two grounds for relief in his pending petition. Specifically, Petitioner's claims are as follows:
(1) The Board's determination that Petitioner remained unsuitable for parole is not supported by any evidence in the record, thus violating Petitioner's right to Due Process.
(2) The last reasoned decision by the California Court of Appeals upholding the Board's parole denial was based on an unreasonable determination of the facts, and was contrary to and an unreasonable application of clearly established federal law, in violation of Petitioner's right to Due Process.
Upon careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.
The basic facts of Petitioner's commitment crime were summarized by the Presiding Commissioner at Petitioner's parole hearing as follows:
On July 6, 1986 at approximately 11:55 a.m., police responded to a report received from a citizen that he had found something suspicious at Marion  Bar  Park, in San Clemente Canyon near Genesee  and Highway 52. The responding officer investigated the area, found a bloody bed sheet and a blanket, and pulled up what appeared to be a large wad of human hair. The area had a[n] odor of decomposing flesh, and approximately 70 yards way down an embankment from the freeway, the body of the victim, Deborah  Lynn  Huerta  was found in a plastic bag. On July 6, police received a telephone call from a witness by the name of Dudley O'Neal. O'Neal stated he knew who had committed the murder of Deborah Lynn Huerta, and that McEachern,  [Petitioner's co-defendant,] had told him how the killing took place. O'Neal subsequently made a statement to police, and also testified at the preliminary examination. Essentially, O'Neal reported the following: McEachern told O'Neal that the victim had angered him [sic], so McEachern and [Petitioner] decided to scare her. McEachern, [Petitioner] and the victim drove into the San Clemente Canyon, and McEachern told the victim that this would be the last place she would ever see. At one point, [Petitioner] took the pickup truck and went to get some beer. When [Petitioner] returned with the beer, he left the doors to the pickup unlocked, and the windows open. The victim was able to make a dash for the pickup truck, get in, roll up the windows, lock the door, and attempted to drive away, but McEachern told [Petitioner] to break the windows to stop her. [Petitioner] then took a baseball bat and broke the window. McEachern then pulled the victim from the truck, and during the struggle the victim was fighting, kicking and screaming. McEachern told [Petitioner] to help hold the victim's legs while he straddled the victim. McEachern got [Petitioner's] knife unsheathed, and stabbed the victim in the chest. The autopsy report revealed that the cause of death was multiple stab wounds in the chest, causing lacerations of the heart. On July 9, McEachern and [Petitioner] were arrested for the murder of Deborah Lynn Huerta. A version from [Petitioner] in the same report states that he and McEachern had dug a hold at San Clemente Canyon, and had taken the victim to show her a grave to scare her at approximately 9:00 p.m. [Petitioner] stated he left to get some beer, and when he returned, he left the truck doors unlocked with the keys inside. [Petitioner] explained that the victim got into the truck, rolled up the windows, and started to drive away. [Petitioner] stated he broke the driver's side window with a baseball bat, and that McEachern pulled the victim out [of] the truck and [he] was told to grab the victim's legs. Castleman said McEachern must have grabbed the knife at his side, but he did not see McEachern stab the victim at first, however, [he] saw her go limp and heard the stabbing and the victim gurgling. [Petitioner] freaked out, jumped up, and didn't know what was going to happen, and then started to get sick. [Petitioner] said McEachern scared him, as he told him that he had killed someone before, and McEachern stated he was now an accessory, so he needed to help take care of the situation. [Petitioner] stated that on July 4, McEachern, O'Neal and himself intended to take the body into the mountains and bury it; however, the truck broke down the embankment along the freeway. The following day, [Petitioner] had refused to answer the telephone until McEachern eventually contacted him and told him that he was fucking up, and that he needed to finish the job. [Petitioner] agreed to help, so they returned to the body and attempted to dig a second grave. [Petitioner] and O'Neal had a discussion about how they were both afraid of McEachern. They were unable to move the body because the bag had broke [sic], and [Petitioner] finally told McEachern he didn't want to help anymore, and they all left the area. (Pet. Ex. C at 12-15, Tr. of Petitioner's Parole Hr'g, Jan. 18, 2008).
Following a jury trial, Petitioner was convicted of second degree murder and was sentenced to fifteen years to life in prison. Petitioner was received into the Department of Corrections on May 14, 1986. Petitioner's minimum eligible parole release date passed on December 14, 1994 and since then, he has petitioned the Board of Parole Hearings for release on numerous occasions. On January 18, 2008, Petitioner appeared before the Board for his seventh 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 sought habeas corpus relief in the San Diego County Superior Court. On July 18, 2008, the court denied his 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 Fourth Appellate District denied the petition on November 25, 2008, also finding some evidence in the record supported the Board's decision. Petitioner then sought relief in the California Supreme Court, where his petition was denied without comment on June 10, 2009. Petitioner filed this federal petition for writ of habeas corpus on July 10, 2009. Respondent filed an answer on March 12, 2010, and Petitioner filed his traverse on March 24, 2010.
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 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.
Petitioner contends in two separate but related claims that his federal right to due process of law was violated by the Board's 2008 determination that he was not suitable for parole. First, Petitioner claims that the Board's decision was not supported by any evidence in the record, in violation of his federal right to due process of law. Petitioner's second claim is that the last reasoned decision denying his state habeas corpus petition by the California Court of Appeals, Fourth Appellate District, was based on an unreasonable determination of the facts and was both contrary to and an unreasonable application of clearly established federal law, also in violation of his federal right to due process of law.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits state action that "deprive[s] a person of life, liberty or property without due process of law." U.S. CONST. AMEND. XIV, § 2. 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. Ky. Dep't. Of Corrs. 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. Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). In the context of parole, the United States Constitution does not, in and of itself, create a protected liberty interest in the receipt of a parole date, even one that has already been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, when a state, such as California, elects to use mandatory language in its statutory parole scheme, it "'creates a presumption that parole release will be granted' when or unless certain designated findings are made, thereby giving rise to a constitutional liberty interest." McQuillan, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 12 (1979)).
Under California state 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 (2005). Generally, one year prior to an inmate's minimum eligible parole release date, the Board will conduct a hearing to determine that inmate's 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 1181, 1202 (2008) (citing CAL. PENAL CODE § 3041(a)). The Board is instructed by statute to "set a release date unless it 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).
California state prisoners who have been sentenced to prison with the possibility of parole, therefore, have a clearly established, constitutionally protected liberty interest in the receipt of a parole release date. Allen, 482 U.S. at 377-78 (quoting Greenholtz v Inmates of Neb. Penal, 442 U.S. 1, 12 (1979)); 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.
During a parole suitability hearing, it is well established that inmates are not guaranteed the "full panoply of rights" normally afforded to criminal defendants under the Due Process Clause. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). Nonetheless, inmates are afforded limited procedural protections. The Supreme Court has held that a parole board, at minimum, must give an inmate an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. Hayward v. Marshall, 603 F.3d 546, 560 (9th Cir. 2010) (citing Greenholtz, 442 U.S. at 16). In addition, as a matter of state constitutional law, denial of parole to a California inmate must be supported by "some evidence" demonstrating that the inmate poses an unreasonable risk of danger to society. Hayward v. Marshall, 603 F.3d 546, at 562 (citing In re Rosencrantz, 29 Cal.4th 616, 128 (2002)). See also In re Lawrence, 44 Cal.4th at 1191 (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 (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, 606 F.3d 1206, 1213 (9th Cir. 2010), making compliance with this evidentiary standard mandated by the federal Due Process Clause. Pearson v. Muntz, 606 F.3d 606, 609 (9thCir. 2010). Petitioner was thus entitled to an opportunity to be heard during his parole hearing, a decision supported by "some evidence" that he remained a current risk to public safety, and to be informed of the reasons he did not qualify for parole.
The analysis of whether a California parole board's suitability decision was supported by "[some evidence] is framed by the [state's] statutes and regulations governing parole suitability determinations . . . ." Irons, 505 F.3d at 851. A federal court undertaking review of a "California judicial decision approving . . . [the Board's] 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)). Accordingly, this court must "look to California law to determine the findings that 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." Irons, 505 F.3d at 851.
Title 15, Section 2402 of the California Code of Regulations sets forth various factors to be considered by the Board in making its parole suitability findings for inmates convicted of murder. The regulation is designed to guide the Board's determination of whether the inmate would pose 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. The Board is directed to consider all relevant and 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; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to ...