The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Richard Lewis, is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-five years to life plus two years after his conviction in 1981 of first degree murder with a firearm enhancement. Petitioner challenges the September 2004 decision by Governor Schwarzenegger reversing the April 2004 decision by the Board of Prison Terms (the "Board") which had granted Petitioner parole. Petitioner presents several claims in his petition; specifically: (1) the Governor did not exercise his discretion in the manner required by California Penal Code § 3041 in reversing the Board ("Claim I"); (2) the Governor exceeded his authority when he denied parole by concluding that Petitioner's commitment offense involved the infliction of torture ("Claim II"); (3) the Governor's decision denying parole did not comport with due process because the Governor's decision regarding the circumstances of the commitment offense was not supported in the record ("Claim III"); the Governor's decision on the factors surrounding the commitment offense violated Petitioner's due process rights because it was arbitrary and capricious ("Claim IV"); (5) the Governor's decision violated Petitioner's due process rights because it relied on the unchanging factors of Petitioner's commitment offense ("Claim V"); and (6) the Governor's role in reversing the Board's decision violated the Ex Post Facto Clause ("Claim VI"). Petitioner requests: (1) an order to show cause; (2) an order to conduct discovery and/or an evidentiary hearing; and (3) an order for supplemental briefing. For the following reasons, Petitioner's requests are denied and it is recommended that his federal habeas petition be denied.
II. FACTUAL*fn1 AND PROCEDURAL BACKGROUND
On the evening of July 26, 1980, Richard Lewis murdered 33-year-old Richard Cain by shooting him multiple times with a .22-caliber revolver.
On the day of the murder, Mr. Lewis' girlfriend told him that Mr. Cain had made unwanted sexual advances at her two months earlier. Mr. Lewis became very angry and subsequently told his girlfriend's sister, who was married to Mr. Cain at the time, "If you care anything about [Mr. Cain], you better tell him to get out of town."
Afterward, Mr. Lewis and his girlfriend's brother obtained a revolver and some bullets. After loading the weapon, Mr. Lewis put it under the driver seat of his car. The two men then went to the home of Mr. Lewis' girlfriend, where they found Mr. Cain.
Mr. Lewis a short while later suggested that the men go out to get some marijuana and Mr. Cain decided to go along. Mr. Lewis drove instead to a remote location, where he ordered Mr. Cain out of the car and pulled out the revolver. He then shot Mr. Cain once in the buttocks and once in the chest. Either before or in between shots, Mr. Cain asked, "What did I do?" As Mr. Cain lay wounded on the ground, Mr. Lewis gave the revolver to his girlfriend's brother and told him to shoot Mr. Cain. The brother refused, and gave the revolver back to Mr. Lewis. Mr. Lewis then walked over to where Mr. Cain lay, lifted Mr. Cain's head by the chin to look him in the face, and said, "Richard Cain, I want you to know who's doing this to you." Mr. Lewis then shot Mr. Cain twice in the side of the head, killing him. (Resp'ts' Answer, Ex. 3.) In 1981, Petitioner was convicted of first degree murder with a firearm enhancement. On April 20, 2004, the Board conducted a subsequent parole consideration hearing. The Board ultimately concluded that the Petitioner was suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. On September 13, 2004, the Governor reversed the Board's decision and found that Petitioner would continue to pose an unreasonable risk of danger to society if paroled at that time.
Petitioner challenged the Governor's decision denying him parole in the Fresno County Superior Court via a state habeas petition. The Superior Court denied Petitioner's state habeas petition on January 6, 2005. In denying the petition, that court stated the following:
Having reviewed the petition for writ of habeas corpus transferred from the superior court in the County of Marin and filed on December 28, 2004, the court finds no error justifying the requested relief. (Cf. In re Van Houten, (2004) 116 Cal.App.4th 339, In re Smith (2003) 114 Cal.App.4th 343, In re McClendon (2003) 113 Cal.App.4th 315, In re Capistran (2003) 107 Cal.App.4th 1229, and In re Rosenkrantz (2002) 29 Cal.4th 616.) The petition is denied.
(Resp'ts' Answer, Ex. 5 at p. 2.) On March 3, 2005, the California Court of Appeal, Fifth Appellate District summarily denied the petition without discussion or citation. On February 1, 2006, the California Supreme Court summarily denied the petition stating, "Petition for writ of habeas corpus is denied. (See In re Rosenkrantz (2002) 29 Cal.4th 616.)." (Resp'ts' Answer, Ex. 7a at p. 2.)
In March 2006, Petitioner filed the instant federal habeas petition. After an answer and a traverse were filed, Petitioner was appointed counsel in December 2007. On November 5, 2009, Petitioner was released on parole. Petitioner was then ordered to show cause why his habeas petition should not be dismissed in light of his release from prison on parole. Petitioner responded to the order to show cause. On March 10, 2010, this Court concluded that the action would not be dismissed in light of the fact that "plaintiff could still benefit by a favorable ruling that may result in the shortening of his parole."
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 only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d). Nevertheless, where a state court provides no reasoning to support its conclusion as in this case, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrande, 538 U.S. 63 (2003).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
IV. DISCUSSION OF PETITIONER'S CLAIMS
In Claim I, Petitioner asserts that the Governor did not exercise his discretion in the manner required by California Penal Code § 3041. California Penal Code section 3041 sets forth the state's legislative standards for determining parole for life-sentenced prisoners. Section 3041(a) provides that, ""[o]ne year prior to the inmate's minimum eligible release date a panel . . . shall again meet with the inmate and shall normally set a parole release date." Cal. Penal Code § 3041(a). However, subsection (b) states an exception to the regular and early setting of a life sentence term if the Board 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 the consideration of public safety requires a more lengthy period of incarceration for this individual." Cal. Penal Code § 3041(b).
Claim I asserts that the Governor misapplied state law. As such, this Claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States."). Petitioner is not entitled to federal habeas relief on Claim I that the Governor misapplied state law.
B. Claims II, III, IV and V
Claims II, III, IV and V take issue with the Governor's analysis in ultimately determining that Petitioner was not suitable for parole. While Petitioner makes several arguments within these claims that will be analyzed herein, the issues presented fundamentally turn on whether the Governor's decision denying parole comported with due process under the 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. See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989).
A protected liberty interest may arise either from the Due Process Clause itself or from state laws. See, e.g., Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create a protected liberty interest in the receipt of a parole date. See Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, if a state's statutory parole scheme uses mandatory language, 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. McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002) (quoting Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 12 (1979)).
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. See Greenholtz, 442 U.S. at 16.
As a matter of state law, denial of parole to California inmates must be supported by at least "some evidence" demonstrating current dangerousness. See Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (en banc) (citing In re Rosenkrantz, 29 Cal. 4th 616, 128 Cal. Rptr. 2d 104, 59 P.3d 174 (2002); In re Lawrence, 44 Cal. 4th 1181, 82 Cal. Rptr. 3d 169, 190 P.3d 535 (2008); In re Shaputis, 44 Cal. 4th 1241, 82 Cal. Rptr. 3d 213, 190 P.3d 573 (2008)). "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) (per curiam). Thus, a reviewing court such as this one must "decide whether the California judicial decision approving the governor's decision rejecting parole was an 'unreasonable application' of the California 'some evidence' requirement or was it 'based on an unreasonable determination of the facts in light of the evidence.'"*fn2 Hayward, 603 F.3d at 562-63.
The analysis of whether some evidence supports denial of parole to a California state inmate is framed by the state's statutes and regulations governing parole suitability determinations. See Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007), overruled in part on other grounds, Hayward, 603 F.3d 546. This court "must look to California law to determine the findings that are necessary to deem a prisoner 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.
As previously stated, California Penal Code section 3041 sets forth the state's legislative standards for determining parole for life-sentenced prisoners. Section 3041(a) provides that, ""[o]ne year prior to the inmate's minimum eligible release date a panel . . . shall again meet with the inmate and shall normally set a parole release date." Cal. Penal Code § 3041(a). However, subsection (b) states an exception to the regular and early setting of a life-sentenced prisoner's term, if the Board 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 the consideration of public safety requires a more lengthy period of incarceration for this individual." Cal. Penal Code § 3041(b).
Title 15, Section 2402 of the California Code of Regulations sets forth various factors to be considered by the Board in its parole suitability findings for murderers. "The regulation is designed to guide the Board's assessment of 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 1214, 82 Cal. Rptr. 3d 169, 190 P.3d 535. The Board is directed to consider all relevant, reliable information available regarding: 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 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. Id. § 2402(c)-(d).*fn3 The overriding concern is public safety and the focus is on the inmate's current dangerousness. See In re Lawrence, 44 Cal. 4th at 1205, 82 Cal. Rptr. 3d 169, 190 P.3d 535. Thus, the proper articulation of the standard of review is not whether some evidence supports the reasons cited for denying parole, but whether some evidence indicates that the inmate's release would unreasonably endanger public safety. See In re Shaputis, 44 Cal. 4th at 1254, 82 Cal. Rptr. 3d 213, 190 P.3d 573. There must be a nexus between the facts relied upon and the ultimate conclusion that the prisoner continues to be a threat to public safety. In re Lawrence, 44 Cal. 4th at 1227, 82 Cal. Rptr. 3d 169, 190 P.3d 535. As to the circumstances of the commitment offense, the Lawrence court concluded that:
[T]he Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.
The panel of the Board that presided over Petitioner's 2004 parole suitability hearing considered the factors bearing on Petitioner's suitability for parole and weighed those factors in favor of releasing Petitioner on parole. The Board stated the following in deciding to grant parole:
The Panel reviewed all information received from the public and relied on the following circumstances in concluding that the prisoner is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. One, the prisoner have [sic] no juvenile record of assaulting others. While imprisoned -- however, we do note that there was an adult history, and that was for stealing . . . Mail, and the prisoner was on probation at the time. We do note that, but other than that there's -- but there certainly is no assaultive behavior here. While imprisoned the prisoner has enhanced his ability to function within the law by participating in self-help programs.
Most noteworthy, I believe, is the self-help programs and also, I believe real noteworthy, is the certificates that were reviewed in the C-File, in which the prisoner has participated in a Hospice Program. He's donated his own time while working in the Inmate Day Labor Program. AA have been ongoing and he also, at one time he participated in the Victims -- VORG, Victim Offenders Program I believe it was. And the Christian . . . KAIROS Program and there's numerous citations in the file where he participated in numerous Christian related programs. Also, AA have been -- throughout his file is replete with participation in the -- in those kinds of programs, AA, Alcohol Anonymous.
Also noted in the file is that the prisoner has been assigned to the Inmate Day Labor Program for a substantial amount of time. And the Inmate Day Labor Program, the Board looks more favorable on those kinds -- on that type of program than on, say, just a regular vocational program. And the reason we look favorable on it, because not only did the prisoner learn a trade in electronics or in the electrical field, but he actually applies the trade on a daily basis and he became proficient. And typically you'll see in a vocational program, an individual or an inmate will be referred to as an apprentice, but in the file the inmate is referred to as a journeyman Electrician and certainly we note that. Also, I noted in the file that the prisoner did, while in IDL, or Inmate Day Labor, the inmate did enhance his ability by picking up an additional skill and that was in the field of Arc and . . . Welding. So, the prisoner has those skills too and it's attributed to his work experience in Inmate Day Labor. So, certainly in this case, the Board feel fairly certain the prisoner does have a marketable skill that he could put to use as soon as he's released from prison.
Now, the prisoner did not have a major criminal history, as previously noted. However, the Board did note that there was an arrest and conviction and the prisoner was on probation at the time that he committed the offense for mail theft. However, because of maturation, growth and greater understanding and advanced age, it appears to the Board and that decision -- was -- we came to that decision after ...