FINDINGS AND RECOMMENDATIONS
Petitioner Carl Thomas Henderson is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner is currently serving an indeterminate sentence of twenty seven years to life following his conviction in Los Angeles County for first degree murder with use of a firearm. The pending petition challenges the execution of that sentence, and specifically, a November 3, 2004 decision of the state parole authority that petitioner was not suitable to be released on parole.*fn1
On August 25, 1981, petitioner was involved in a gang confrontation between members of the Lime Hood Piru gang and members of Santana Crips at Oak Park in Compton, California. According to petitioner, he was not a member of any gang, but was around the Pirus often because of this cousin. Petitioner spent the day drinking in front of his aunt's apartment complex. A neighbor gave him a shotgun in the late afternoon. That night, the group entered a van to find the Crips. Witnesses saw petitioner and his crime partner fire their weapons at the 17 year old victim, Kennedy Marsalis Johnson. The victim received multiple gunshot pellet injuries to his head, neck, chest, abdomen and extremities and was pronounced dead shortly after the shooting. Later that night, police apprehended the van and its occupants; petitioner was among them and was arrested at that time.
According to petitioner's version of the offense, he did not shoot the victim and was not present when it occurred. Petitioner admits that someone had handed him a shotgun earlier that evening outside his aunt's house, as witnesses testified. Petitioner maintains, however, that he took the shotgun into the house. Petitioner claims he was in the bathroom when he heard the gunshots; he then went outside, saw his cousin and friends driving away, and went with them in the van because he was in fear and did not want to remain in the vicinity. Petitioner claims he did not know that someone had been shot until he was arrested.
At trial, a jury found petitioner guilty of first degree murder with use of a firearm. He was sentenced to an indeterminate term of twenty seven years to life in state prison. His minimum eligible parole date passed in November of 1999.
On November 3, 2004, a panel of the Board of Prison Terms ("Board") conducted a second subsequent (third overall) hearing to determine petitioner's suitability for parole. After considering various positive and negative suitability factors, the panel concluded that petitioner would pose an unreasonable risk of danger to society if released, and thus that he was not suitable for parole.
Petitioner sought habeas corpus relief in the Los Angeles County Superior Court. The petition was denied for failure to state a prima facie claim for relief. The same petition presented to the California Court of Appeal, Second District, was likewise denied, and the California Supreme Court denied review.
The pending federal petition presents three claims for relief, as follow, verbatim. For purposes of this opinion, petitioner's second and third claims will be discussed together as a single claim.
The Board of Prison Terms' finding of unsuitability and denial of parole was unsupported by any evidence in the record in violation of petitioner's due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution.
Petitioner's procedural due process rights were violated during the hearing by the introduction of and reliance on evidence not made available to him before the hearing as required under state law. The Board of Prison Terms violated petitioner's due process rights by promulgating and applying regulations that are inconsistent with the governing statutes concerning parole determinations.
IV. 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)). 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 also 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 will look 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).
A. Federal Due Process and the "Some ...