The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Dana Lawrence Singer, a state prisoner appearing pro se, has filed a petition for relief under 28 U.S.C. § 2254. Singer is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent ("State") has answered the petition, and Singer has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In September 1991 Singer was convicted in the Los Angeles County Superior Court on a guilty plea of Murder in the Second Degree (Cal. Penal Code § 187(a)), and with use of a firearm (Cal. Penal Code § 12022(a)). The trial court sentenced Singer to an indeterminate prison term of 20 years to life. Singer does not contest his conviction or sentence in this proceeding. In April 2006 Singer, represented by counsel, made his second appearance before the Board of Prison Terms ("Board"), which denied him parole for a period of three years. Singer, appearing pro se, timely filed a petition for habeas relief in the Los Angeles County Superior Court, which denied his petition in an unreported, reasoned decision. Singer's subsequent petition for habeas relief was denied by the California Court of Appeal in an unreported, partially reasoned decision, and the California Supreme Court summarily denied review without opinion or citation to authority on October 10, 2007. Singer timely filed his petition for relief in this Court on January 6, 2008.
After briefing was completed, the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Hayward v. Marshall.*fn1 At Docket No. 17 this Court entered an Order directing the parties to file supplemental briefs addressing the Hayward decision, in particular that "[t]he prisoner's aggravated offense does not establish current dangerousness 'unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state' supports the inference of dangerousness."*fn2 The Court also directed the parties to consider two Ninth Circuit Decisions applying Hayward.*fn3 Both parties have submitted supplemental briefing.
The facts of the crime for which Singer was convicted, as recited by the Los Angeles County Superior Court, are: The record reflects that on July 27, 1990, [Singer's] crime partner was involved in a minor traffic accident when his girlfriend rear-ended another vehicle. The parties exchanged information for insurance purposes. The next morning [Singer] and his crime partner went to the other driver's home to speak to him about paying for the damage without filing an insurance claim. [Singer] brought a nine millimeter semi-automatic handgun, which he planned to use to scare the victim into returning the license and registration information to his friend. When [Singer] pulled out the gun, the victim laughed at him so he shot him in the back of the head. They then removed his wallet with the identification information. They were arrested when they attempted to use the victim's credit card to buy tires.*fn4
II. GROUNDS RAISED/DEFENSES
In his petition, Singer raises four grounds for relief: (1) there was insufficient evidence to support denial of parole; (2) the action of the Board abolished his liberty interests created by the mandatory parole provisions; (3) the decision of the Board was arbitrary and capricious, violating his constitutional rights of due process and equal protection; and (4) in ignoring the report of the psychologist, his due process rights were violated. The State does not assert any affirmative defense.*fn5
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 The Supreme Court has explained that "clearly established Federal law" in 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn7 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts..*fn8 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn10 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn11 "[A]bsent a specific constitutional violation, federal habeas corpus review of [state court] error is limited to whether the error 'so infected the [proceeding] with unfairness as to make the [result] a denial of due process.'"*fn12 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal proceeding is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn13 The petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn14
In applying this standard, this Court reviews the last reasoned decision by the state court,*fn15 which in this case was in part that of the Los Angeles Superior Court and in part that of the California Court of Appeal. Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn16 This presumption applies to state trial courts and appellate courts alike.*fn17
This Court notes that Singer's arguments, with one exception, are premised upon California state-court decisions, not decisions of the United States Supreme Court, the standard mandated by § 2254(d).*fn18 In his traverse, Singer does, however, present arguments based upon due process decisions of the Supreme Court, in a context applicable to this case. This Court does not ordinarily consider arguments raised for the first time in the traverse. "The petition must: (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; [and] (3) state the relief requested . . . ."*fn19
In this case, however, two factors justify departing from that general rule. First, Singer is responding to arguments raised by the Respondent. Second, and perhaps more importantly, is the striking similarity of the legal principles discussed in the California cases when compared to the constitutional principles applied by the Supreme Court. Therefore, the Court will address the grounds for relief raised by Singer applying the constitutional standard.
Although this Court normally considers the grounds raised separately in seriatim as presented by the Petitioner, in this case this Court departs from that usual practice. First, because the determination of the fourth ground may impact the first three grounds, it will be discussed first. Second, Singer's first three grounds are all variations of the same argument stated in slightly different terms. The common thread binding these three grounds is that Singer contends he has been a model prisoner with an exemplary prison record, has met all the statutory requirements for release on parole, and the Board improperly based its decision principally, if not solely, on the nature of his underlying conviction. It is, therefore, appropriate to discuss the first three grounds as a single group.
Ground 4: Psychologist's Report
Singer argues that the Board and the Los Angeles Superior Court erred in disregarding the report of the psychologist that Singer had unique insight into his case, remorse, and an understanding of his role in the crime. Although Singer raised this issue before the California courts, no decision directly addressed it. When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must assume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn20
The scope of this review is for clear error of the assumed state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams . . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn21
"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn22
Singer bases this argument on the fact that, in a decision upholding a prior denial of parole, a superior court judge stated that the only criteria needed to be found suitable for parole was his lack of insight into the crime. Singer argues that since the later psychological report was positive, this hurdle was cleared and he was erroneously found to be unsuitable for parole.
Singer misconstrues the holding of the Los Angeles Superior Court in denying his habeas petition in 2004. In that decision the court stated: The Court notes, however, that the psychologist's findings as to Petitioner's insight seem unsupported by the record as presented to the Board and the Court. (See Psychological Evaluation for the Board of Prison Terms, supra, at 4.) Thus, the Court recommends that the Board order a new psychological evaluation prior to Petitioner's next hearing, specifically addressing the issue of insight.*fn23
This decision cannot be considered as the law of the case binding either the Board or a court in a subsequent parole proceeding in the manner suggested by Singer, i.e., that once he had a favorable psychological evaluation he was entitled to parole. The Los Angeles Superior Court recommended a new psychological evaluation addressing the "insight" issue. Nothing in the court's holding can be construed as holding that a favorable psychological evaluation would automatically require a finding of suitability for parole. In his follow-up evaluation, the psychologist opined: "He appeared to have a great deal of insight and understanding in regard to his commitment offense. (This examiner is also of the opinion that his commitment offense was more of an aberration than a lifestyle.)"*fn24 In announcing the decision of the panel, the presiding commissioner stated: I don't pretend to be a psychiatrist, and we have considered the psychological reports, reports plural. The last one prepared by John Rouse on January 24th of this year, 2006, who indicates there are no mental health issues. I must say when he concludes in the area that I read that you appear to have a great deal of insight and understanding in regard to the offense, I don't know what he's referring to in his report. I certainly didn't see that in our conversations with you. You know how to say I accept responsibility. You know how to say I'm sorry. I don't doubt your sincerity. But given the totally aberrant crime that occurred here, and the fact I think he indicated that, this examiner is also of the opinion that his commitment offense was more of an aberration than lifestyle, meaning, well, something strange happened. Something unusual happened. Well, okay, if that's as good as we can get, maybe it is, but then you killed somebody, and we've got to be assured that that's not going to happen again.
So, we believe that a greater period of, not only reflection but to the extent that you're going to get in depth therapy that looks at the potential causes of the circumstance to the greatest extent possible, such that these questions can either be answered or at least explored and eliminated, because before we can be convinced to ourselves, before we can recommend to our Board, to the Governor, or to the People of the State, it's clear to us that there has to be a greater understanding, both of the causes of what occurred such that we can be assured it won't happen again. And I would suggest that activities that give you greater insight into the effects of your action (indiscernible - loud coughing) ...