FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his twelfth parole consideration hearing held on March 7, 2006. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be granted.
On May 27, 1981, petitioner pled nolo contendere in the Alameda County Superior Court to kidnapping for robbery and was sentenced to a state prison term of life with the possibility of parole. (Pet. at 1-2.) Petitioner's minimum eligible parole date was April 20, 1987.
The parole consideration hearing which is placed at issue by the instant petition was held on March 7, 2006. (Answer, Attach. C to Ex. 2 (hereinafter "Decision")). This was petitioner's twelfth such hearing. (Id. at 1.) On that date, a Board panel found petitioner not suitable for release on parole and denied parole for one year. (Id. at 36.) Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Alameda County Superior Court. (Answer, Ex. 2.) The Superior Court rejected petitioner's claims in a reasoned decision on the merits, stating as follows:
Petition for writ of habeas corpus is denied. The Petition fails to state a prima facie case for relief. There is nothing in the record presented that indicates that the Board's decision was arbitrary or capricious. Nor is there evidence that the Board abused its discretion or power in denying Petitioner's parole. The Court's review of the record is limited to determining whether there is "some evidence" to support the Board's decision. The Board clearly stated that it was basing its decision on the fact that petitioner had not acquired sufficient parole plans as the Board had directed in previous hearing. The Board indicated that petitioner hadn't taken adequate steps to ensure that upon his release in California, he had concrete plans with a structured environment for housing and a work situation. In addition the Board indicated that any of petitioner's plans also had to contain a structured and assured continuation by Petitioner in AA or some similar program. Thus there is "some evidence" in the record that supports the Board's denial of parole. There were no violations of Petitioner's rights. (Answer, Ex. 1.)
Petitioner challenged the Superior Court's decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the First Appellate District. (Answer, Ex. 3.) That petition was summarily denied by order dated June 13, 2007. (Answer, Ex. 5.) On July 9, 2007, petitioner filed a petition for review in the California Supreme Court. (Answer, Ex. 4.) That petition was summarily denied by order dated September 12, 2007. (Answer, Ex. 6.) ///// ///// /////
The facts underlying petitioner's offense of conviction were described in a psychological report prepared in advance of petitioner's 2006 parole suitability hearing, as follows:
A review of Mr. Doss's initial Probation Officer's Report indicates that the circumstances of his commitment offense was that Mr. Doss and a co-defendant were convicted of stealing gasoline money and credit cards from a family of four at knifepoint. Mr. Doss inflicted cuts on the victim's hands as she struggled to become free. Ms. Doss and his co-defendant held this family in captivity for period [sic] of time and then transported them to their home. The victims were able to escape later without further harm. Records indicate that Mr. Doss had an insignificant history of criminality prior to his commitment offense. He accepted culpability for his commitment offense. He stated, "I needed gas for the car." He stated that he has always apologized for the offense and he hasn't talked a lot about it because it's a matter of record. He stated that basically his car ran out of gas. He and a hitchhiker that he had picked up had been drinking and decided to get some gas from the victims. He stated that he now realizes that he should have just left the car where it was and returned later, after he had gotten some money and gotten his car. He said that he also realizes that he should not have picked up the hitchhiker anyway but saw the hitchhiker carrying a sea bag and believed him to be a fellow military person. He said alcohol was clearly a marginalizing factor in the offense in that had he not been drinking, had he not broken up with his wife and been depressed about it, he would most likely have not been involved in the instant offense. Mr. Doss reported to this examiner that he has grown and has matured solely as a result of his incarceration. He stated that his incarceration has had a significant effect on his belief system, he has been clean and sober, and as a result has developed a significantly different perspective on life. (Answer, Attach. B to Exhibit 2.)
I. Standards of Review Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See 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)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner claims that the Board's 2006 decision finding him unsuitable for release on parole violated his right to due process because "there was no evidence presented at the [hearing] to support the Board's determination that petitioner would pose an unreasonable risk of danger to the public if released from prison." (Pet. at 6.) He argues that, in finding him unsuitable for parole based solely on his failure to obtain a commitment to live in a "transitional 'structured' live ...