FINDINGS AND RECOMMENDATIONS
Petitioner, Rodney Alton Bryant, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of fifteen years to life following his 1990 guilty plea in Sacramento County Superior Court to second degree murder. Here, Petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence, and specifically, the April 9, 2009 decision by the Board of Parole Hearings finding him unsuitable for parole.
Petitioner alleges two grounds for relief in his pending petition. Specifically, Petitioner's claims are as follows:
(1) The Board's three year denial of parole based on the 1 application of Marsy's Law violated Petitioner's rights under the ex post facto, due process, and equal protection clauses, and subjects Petitioner to cruel and unusual punishment.
(2) The Board denied Petitioner's right to due process of law by requiring him to discuss the commitment offense in order to obtain a parole release date.
After careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.
The basic facts of Petitioner's life crime were summarized by the Presiding Commissioner at Petitioner's parole hearing as follows:
On August 12th, 1990, Rodney Bryant . . . went fishing with his brother, Sean Bryant, Antonio Tavares . . . and Tavares' daughter and and Bryant's girlfriend's eight-year old son . . . . The victim cruised by the fishing party in his motorized rubber boat and snagged a fishing pole, pulling it into the river. When the victim came back, Tavares fired a shotgun round into the air to stop the victim. The victim started to leave when Tavares fired another shotgun round. Rodney Bryant fired at least one rifle shot. Police investigation conclude[d] the victim was hit in the back by a .22 caliber cartridge fired by Bryant. After the victim called out for help, the fishing party gathered their equipment and left the scene. A fisherman observed the victim's boat going in circles in the middle of the slough. The property caretaker and another individual eventually pulled the partially deflated boat to the shore. The victim was found dead when the officers arrived. Tavares was arrested at his residence after an incomplete 911 call was traced to his home. Bryant was taken into custody August 13th, 1990.
The prisoner's version: Bryant states they brought the guns with them because they had seen snakes in the area. The victim had snagged Tavares' pole. Tavares wanted to go after the victim with a shotgun but Bryant told him the slough was a dead end and he would have to return. When the victim returned, Tavares fired a shotgun into the air. Bryant stated he fired a rifle into the water, however, his view of the victim was obstructed by bushes along the bank. Upon hearing the victim's cry for help, Bryant suggested they go to the caretaker's house and look for help. Tavares refused, ordering the others to pack up. Bryant drove Tavares' truck to Tavares' house. Bryant admits culpability and is remorseful. He feels he was not allowed a fair deal due to the witnesses' stories. He stated the witnesses had not been truthful with the investigators. He pled guilty to second degree murder on advice of his lawyer. (Pet. at 54-56.) Petitioner was sentenced to fifteen years to life in prison, and his minimum eligible parole date passed on February 21, 2001. On April 9, 2009, Petitioner appeared before the Board of Parole Hearings (the "Board") for his third subsequent parole consideration hearing. After considering various positive and negative suitability factors, the panel concluded that Petitioner would pose an unreasonable risk of danger to society if released, and concluded that he was not suitable for parole. Petitioner sought habeas corpus relief from the Board's determination in the Sacramento County Superior Court. On August 24, 2009, the court denied his petition in a reasoned decision, finding that both of Petitioner's claims were without merit. The California Court of Appeal, First Appellate District, and the California Supreme Court denied relief without comment. Petitioner filed this federal petition for writ of habeas corpus on December 15, 2009. Respondent filed an answer on March 12, 2010, and Petitioner filed his traverse on March 30, 2010.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in 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 the State court proceeding.
28 U.S.C. § 2254(d). See also Penry v. Johnson, 531 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner claims that his rights under the Ex Post Facto Clause were violated when the Board issued a three year denial of parole, pursuant to Marsy's Law, which was passed and implemented after Petitioner was convicted. In addition, Petitioner contends that application of Marsy's law in his case violates his right to be free from cruel and unusual punishment, as well as his rights to due process and equal protection. According to Petitioner, application of Marsy's law in his case increases the punishment for his commitment offense and decreases the likelihood that he will ever be granted a parole release date. Petitioner argues that Marsy's Law is inapplicable to him and that future parole hearings must be held pursuant to the law in effect at the time the commitment offense occurred.
At the time Petitioner was convicted, an inmate deemed unsuitable for parole was entitled to annual subsequent parole suitability hearings. CAL. PENAL CODE § 3041.5(b)(2) (1990). If the Board determined that it was not reasonable to expect that the inmate would be deemed suitable for parole within the year, the hearing could be deferred for two years if the Board stated the bases for so finding. Id. The Board could defer a parole suitability hearing for three years in cases where an inmate was convicted of more than one offense involving the taking of a life if the Board determined that it was not reasonable to expect the inmate would be deemed suitable within the following years and stated the bases for so finding. Id. Thus, at the time of his conviction, Petitioner, who stands convicted of a single murder, was entitled to either annual or biennial parole suitability hearings.
The law governing the frequency of parole suitability hearings has changed multiple times since Petitioner was convicted. Immediately prior to the enactment of Marsy's Law, inmates deemed unsuitable for parole were entitled to annual parole suitability hearings, unless the Board found it unreasonable to expect that parole would be granted at a hearing during the following year, in which case a subsequent suitability hearing could be deferred for two years if the Board stated its bases for so finding. CAL. PENAL § 3041.5(b)(2) (2008). Any inmate convicted of murder could be denied parole for a period of up to five years if the Board found it unreasonable to expect that parole would be granted during the following years and stated the bases for so finding in writing. Id.
On November 4, 2008, California voters passed Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," which, inter alia, altered the frequency of parole suitability hearings for prisoners found unsuitable for parole. Marsy's Law, which effected significant changes in the law governing frequency of parole hearings, was codified in section 3041.5(b)(3) of the California Penal Code as follows:
The Board shall schedule the next hearing, after considering the views and interests of the victim, as follows:
(A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years.
(B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than seven additional years.
(C) Three years, five years, or seven years after any hearing at which parole is denied, because the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years.
CAL. PENAL CODE § 3041.5(b)(3) (2010). The Ninth Circuit Court of Appeals recently detailed the significant changes accomplished by ...