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 for four years following his third parole suitability hearing held on May 3, 2006. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
Petitioner is confined pursuant to a judgment of conviction entered in the Contra Costa County Superior Court in 1985 on a charge of second degree murder. (Pet. at 1.)*fn1
Pursuant to that conviction petitioner was sentenced to twenty years-to-life in state prison. (Id.)
Petitioner's third parole consideration hearing, which is placed at issue by the instant petition, was held on May 3, 2006. (Id. at 73.) At that time, petitioner had served more than twenty-three years in prison. The Board panel found him not suitable for release on parole and denied parole for four years. (Answer, Ex. 1 (Doc. No. 18-1) at 68.)
On September 13, 2007, petitioner challenged the Board's decision in a petition for a writ of habeas corpus filed in the Solano County Superior Court. (Answer, Ex. 1 (Doc. No. 18-1) at 2.) That petition was denied on the procedural ground that petitioner had failed to support his petition with a "necessary exhibit" - the transcript of his 2006 parole suitability hearing. (Answer, Ex. 2 (Doc. No. 18-3 at 2-3).)
Petitioner subsequently challenged the Board's 2006 decision in petitions for writ of habeas corpus filed in the California Court of Appeal and California Supreme Court. (Answer, Exs. 3 (Doc. No. 18-3 at 5) & 5 ((Doc. No. 18-4 at 2).) Those petitions were both summarily denied. (Answer, Exs. 4 (Doc. No. 18-3 at 65) & 6 (Doc. No. 18-6 at 2).)
At the commencement of petitioner's 2006 parole suitability hearing, the presiding commissioner stated that, in the interests of "justice and brevity," the panel would incorporate the facts of petitioner's crime of conviction as set forth in the probation report. (Pet. at 78.) The commissioner did not read the facts into the record and the probation report is not part of the record before this court as presented by the parties. However, with respect to a previous habeas corpus action filed by petitioner in this court challenging the Board's 2002 decision denying him parole, the Board had described the facts of petitioner's crime of conviction as follows:*fn2
[O]n July 31st, 1983, Bob Altes, A-L-T-E-S, and Dana Bennett, BE-N-N-E-T-T, and Greg Garcia went to Noel Watkins house in Oakley at 800 hours to pick up some marijuana. Watkins apparently was a minor drug dealer, was able to readily acquire drugs. When Garcia driving before [sic] made another drug stop where they acquired Valium, they took several Valiums, smoked some weed, and drank a half a pint of Seagram Canadian Whiskey and 7-Up and drove back to Watkins' house to get more weed. Along the way, Garcia was stopped by the Brentwood police for weaving along Highway 4. They later arrived at Watkins' home. Watkins returned to the car with a 25-caliber handgun. Exiting along a dirt road in front of his house, they came upon a pick up truck that flashed his lights for right of way on the road. Garcia's car became stuck in sand at the side of the road. Watkins exited the vehicle, ran towards the vehicle and shot the passenger, David Mosby, -O-S-B-Y, in the face, the bullet driving towards his upper sinus passages into his neck and lodged next to his spinal chord. Mosby's right shoulder suffered nerve damage. He became unconscious and fell out of the truck. Upon seeing Watkins shoot Mosby, Steve Pasley, P-A-S-L-E-Y, exited the truck and took off running. He was shot in the chin at close range. A second bullet caught him in the right shoulder and a third bullet through the lower back penetrating his lung and exiting through his chest. Pasley collapsed and died over a row fence of a neighbor's yard. Watkins then ran home. Altes stated he was unaware that anyone had actually been shot, followed Watkins to his home and found him in the process of re-loading the handgun and his two 22-caliber rifles. Altes tried to convince Watkins not to hurt anyone. Watkins' father took the handgun from him and his mother asked Altes to leave. Police arrived and arrested Watkins without incident. A search of the home revealed a 25-caliber pistol and two loaded rifles, a loaded 10-shot clip, a loaded Winchester 30/30, a photograph album including several photographs of Watkins sporting firearms, including the murder weapon, and a manual entitled the Anarchist's Cookbook. (Case No. CIV S-06-0685 MCE DAD P, Answer, Ex. 2 at 7-9.)
Petitioner admitted at his 2006 parole suitability hearing that he committed these crimes. (Answer, Exhibit 5 Part 2 (Doc. No. 18-5 at 31).) He explained that he had been "involved in alcohol and drugs" and was under the influence at the time of the shootings. (Id. at 31-32.) He stated that he went out for drinks with a friend prior to the shooting incident; that he ingested Valium, marijuana, and alcohol; and that when he was dropped off at home two men approached him and told him he "had a problem and either come down the street and deal with it or might have to deal with it right there at the house." (Id. at 32-33.) At that point, petitioner "went down the street and shot . . . Steven Pasley," even though he "had no hatred or animosity towards Mr. Pasley or family." (Id. at 33.) Petitioner stated it was "a really odd incident." (Id.) He explained to the Board that he fought with Steven Pasley's cousin "three weeks prior" and he believed that was why the two men asked him to come down to the end of the street. (Id.) Petitioner stated that he acted "erratically," and that he should have simply called the "county sheriffs" or "stayed in." (Id.) He explained that when he walked down the street he took a gun with him for safety reasons. (Id. at 36-37.) He stated to the Board that he didn't have "a real reason to . . . randomly just start blasting," but that he "just lost it" and acted irrationally because he was young and heavily under the influence of alcohol and drugs. (Id. at 37.)
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). See also Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) ("When more than one state court has adjudicated a claim, we analyze the last reasoned decision"). 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).
II. Petitioner's Due Process Claim
Petitioner claims that the Board's May 3, 2006 decision finding him unsuitable for parole violated his right to due process. He argues he has "met all the criteria necessary for parole" and claims the Board members "had made a decision prior to [the] hearing to deny him a parole date." (Pet. at 4.) He also argues that the Board's 2006 decision was "biased and improper" because it was based mainly on the facts of his crime of conviction. (Id. at 5.)
The last reasoned state court decision addressing petitioner's current claims is the December 18, 2007 order of the Solano County Superior Court denying petitioner habeas relief on his challenge to the Board's 2006 decision. As explained above, the Superior Court's denial of petitioner's habeas application was on procedural grounds. Accordingly, this court will review petitioner's claims de novo. Nulph, 333 F.3d at 1056.
B. Applicable Legal Standards 1. Due Process in the California Parole Context
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 litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of ...