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 Governor's May 4, 2007 reversal of the December 6, 2006 decision by the California Board of Parole Hearings ("Board") to grant him parole. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be granted.
Petitioner is confined pursuant to a judgment of conviction entered in the Los Angeles County Superior Court in 1987 for second degree murder. (Pet. at 1.) At that time, petitioner was sentenced to fifteen years to life in state prison. (Id.)
On December 6, 2006, the Board found petitioner suitable for release from prison. (Pet., Ex. D.) On May 4, 2007, the Governor reversed the Board's decision. (Id., Ex. I.)
Petitioner challenged the Governor's decision in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court on August 30, 2007. (Id., Ex. J.) That petition was denied in a reasoned decision on October 27, 2007. (Id.) Subsequently, petitioner challenged the Governor's decision to deny him parole in a petition for writ of habeas corpus dated June 9, 2008 filed in the California Court of Appeal for the Second Appellate District. (Answer, Ex. 3.) That petition was summarily denied on June 25, 2008. (Pet., Ex. K.) Petitioner then filed a petition for review, dated June 28, 2008, in the California Supreme Court. (Answer, Ex. 5.) That petition was summarily denied on August 20, 2008. (Pet., Ex. L.)
The Governor described the facts of petitioner's commitment offense in his statement reversing the Board's grant of parole as follows:
On July 20, 1986, DePriest Williams shot and killed Kevin Fletcher. During the early morning hours, Mr. Fletcher and a group of his friends talked loudly and played music outside of Mr. Williams' apartment. Mr. Williams asked the group to turn the music down. When the volume was not lowered, Mr. Williams shot at the group from his kitchen window, striking one person in the foot. The group dispersed, and Mr. Williams went outside and knocked the radio over. Mr. Fletcher approached Mr. Williams regarding the damaged radio. Mr. Williams displayed a handgun, and Mr. Fletcher ran away. Mr. Williams chased him and shot him in the back, killing him.
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, 533 F.3d 724, 735 (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 ...