The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding with counsel with a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a 2006 denial of parole. He alleges that his parole suitability should be determined using ISL rather than DSL standards; that the presence of information about uncharged crimes in his central file has caused the parole board to be biased against him; and his rights to confrontation and cross-examination were violated when the Board refused to exclude letters from the Ventura County District Attorney's Office and other entities concerning the uncharged offenses; the Board's continued reliance on his commitment offense violates his right to due process; the denial violated his right to due process because it was not based on some evidence of dangerousness.
On October 15, 1976, petitioner was convicted of first degree murder and robbery.
Petition, Ex. 3 at 44. *fn1 On November 24, 1976, he was sentenced to the term provided by law, which at that time was seven years to life. Petn., Ex. 4 at 46.
On April 21, 2006, petitioner appeared before the Board of Parole Hearings for his sixteenth parole hearing. His lawyer objected to the Board's consideration of letters from the Ventura County District Attorney's Office which posited the prosecutor's belief that petitioner had committed another murder and had conspired to commit a third murder. Petn., Ex. 22 at 291, 294. When the Board members overruled the objection to their consideration of the letter, counsel objected to the objectivity of the panel. Petn., Ex. 22 at 292. After a short recess, the panel reiterated its intention to consider the letters as relevant evidence while recognizing that the claims had not resulted in criminal charges and agreeing to give them only the "appropriate weight." Petn., Ex. 22 at 293. Petitioner thereafter refused to participate in the hearing and left the room; his lawyer remained in the room he no longer took part in the hearing. Petn., Ex. 22 at 294-295. The panel did not find petitioner suitable for parole. Petn., Ex. 22 at 312-317.
Petitioner unsuccessfully pursued habeas relief in Ventura County Superior Court and then in the California Supreme Court. Petn., Exs. 25 & 26. He filed the instant petition on November 19, 2007 and on May 30, 2008, this court stayed the proceedings pending the en banc decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). The court lifted the stay after the Ninth Circuit issued its decision. Respondent has now filed an answer and petitioner has filed a traverse.
II. Standard For Review Under The AEDPA
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Also, 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) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn2 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look 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), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
It is appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. "Clearly established" federal law is that determined by the Supreme Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower federal court decisions as persuasive authority in determining what law has been "clearly established" and the reasonableness of a particular application of that law. Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 365 F.3d at 782-83 (noting that reliance on Ninth Circuit or other authority outside bounds of Supreme Court precedent is misplaced).
IV. The Application Of DSL Parole Guidelines To An ISL Prisoner Petitioner argues that because his crime occurred before California's adoption of the Determinate Sentencing Law (DSL), he is entitled to have his suitability for parole considered under the social rehabilitation standards in place under the Indeterminate Sentence Law (ISL).
He also argues that because the base terms for first degree murder under the ISL were from eight to thirteen years, the thirty years he has served is a grossly disproportionate sentence. Petition, Points and Authorities (Ps & As) at 1-2
It is not clear whether petitioner is raising an ex post facto claim in addition to his Eighth Amendment attack on the sentence. Although the superior court noted that under both ISL and DSL, a life prisoner must be found suitable for parole before a date is set, it did not otherwise address any ex post facto claim. Pet'n., Ex. 25 at 372. It did explicitly reject petitioner's disproportionality claim:
"Of course, even if sentenced to a life-maximum, no prisoner can be held for a period grossly disproportionate to his or her individual culpability for the commitment offense." (Dannenberg at 1096). "As we indicated in Wingo, supra, 14 Cal. 3d 169, 'traditionally, one who is legally convicted has no vested right to the determination of his sentence at less than the maximum [citation]. Moreover, a defendant under an indeterminate term has no 'vested right' to have his sentence fixed at the term prescribed by the [parole authority] or any other period less than the maximum sentence provided by statute [Citation.] It has uniformly been held that the indeterminate sentence is in legal effect a sentence for the maximum term [citation], subject only to the ameliorative power of the [parole authority] to set a lesser term [Citation.] . . . Indeed it is fundamental to [an] indeterminate sentence that every such sentence is for the [statutory] maximum unless . . . the [parole] authority acts to fix a shorter term. The authority may act just a [sic] validly by considering the case and then declining to reduce the term as by entering an order reducing it. . . ." Dannenberg at 1097-1098. "Constitutional rights are thus adequately protected by holding that those indeterminate life prisoners who have been denied parole dates, and who believe, because of the particular circumstances of their crimes, that their confinements have been constitutionally excessive as a result, may bring their claims directly to court by petitions for habeas corpus . . . . We therefore hold that the Board proceeded lawfully when, without comparing [defendant's] crime to other second degree murders, to its base term matrices, or to the minimum statutory prison term for that offense, the Board found him unsuitable to receive a fixed and 'uniform' release date by pointing to some evidence beyond the minimum elements of his conviction--indicated exceptional callousness and cruelty with trivial provocation, and thus suggested he remains a danger to public safety." (Dannenberg at 1098.) (Emphasis added.)
In petitioner's case the BPH did consider the particular circumstances of the crime, as indicated hereinabove, and by adhering to state law in doing so the BPH disposed of any argument by petitioner than he was denied constitutional and federal due process rights. (Dannenberg at p. 1098, fn. 18.)
With the exception of capital cases, successful Eighth Amendment challenges to the proportionality of a sentence have been "exceedingly rare." Rummel v. Estelle, 445 U.S. 263, 272 (1980). The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Solem v. Helm, 463 U.S. 277, 288, 303 (1983). A life sentence for murder, even without the possibility of parole, is not constitutionally disproportionate. Harris v. Wright, 93 F.3d 581, 583-85 (9th Cir. 1996); see also Government of the Virgin Island v. Gereau, 592 F.2d 192, 195 (3d Cir. 1979) (not constitutionally impermissble for the legislature to authorize and court to impose a sentence that precludes the possibility that the defendant will be paroled). The state court did not apply federal law unreasonably in rejecting the claim.
Even if petitioner's argument could be read as raising an ex post facto claim, he is not entitled to relief. The Ex Post Facto Clause of the United States Constitution " is aimed at laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." California Department of Corrections v. Morales, 514 U.S. 499, 504 (1995) (internal quotations omitted). The clause does not forbid "any legislative change that has any conceivable risk of affecting a prisoner's punishment." Id. at 507. Any changes between ISL and DSL standards of parole do not change the definition of the crime nor increase the punishment for murder: "the DSL guidelines require consideration of the same criteria as did the ISL." Connor v. Estelle, 981 F. 2d 1032, 1033-34 (9th Cir. 1992) quoting In re Duarte, 143 Cal.App.3d 943, 951 (1983). Here the Board's application of the DSL guidelines did not increase petitioner's sentence: his sentence of seven years to life carries no guaranteed parole date but rather carries with it the potential that petitioner could serve the entire term. There was no violation.
V. The Parole's Board Bias/The Consideration Of Uncharged Conduct*fn3 At the hearing held on April 21, 2006, petitioner's lawyer objected to letters from the Ventura County District Attorney's Office and the San Buenaventura Police Department, which suggested that petitioner had been involved in the murder of Lynn Mueller, and to a second letter and attachments from the Ventura County District Attorney's Office advancing the theory that petitioner had conspired to murder another woman. Petn., Ex. 22 at 291, 292, 294; Ex. 8 at 86-106.*fn4
Commissioner Bryson said:
We're aware of that letter. We're also aware of the letter March 8, 2005, which is included in the board report. And at the previous hearing, this matter was discussed. I don't know if you're aware--I don't know if you read the hearing transcript, but this matter was explored thoroughly, and the information contained in the 2005 letter, which appears to be the same as that contained in the 2006 letter, was permitted to be entered into the record, and so it's basically old news. So we're going to overrule any objections to the material in this letter.
Petn., Ex. 22 at 291-292. Counsel then said because of the panel's exposure to this material, he did not believe it would be objective and so recommended that petitioner not participate in the hearing. Petn., Ex. 22 at 292. The panel took a brief recess and when it returned, Commissioner Bryson said:
. . . Title XV, CCR 22801B and/or 2402B [sic] states that all relevant and reliable information shall be considered in determining suitability for parole. This is not new information that's involved here, and we note for you that 2326 actually does not apply because no criminal charges have been filed regarding this information. As to our ability to be impartial, we recognize that, in fact, this information has not resulted in criminal charges, and this Panel will therefore give that the appropriate -- that information the appropriate weight, and I feel that I can be impartial in this matter and do that.
Petn. Ex. 22 at 292. Thereafter, petitioner left the hearing, though counsel stayed as an observer. Petn., Ex. 22 at 294-295. The representative of the Ventura County District Attorney's Office present at the hearing did not mention these allegations during his remarks and the panel noted only the District Attorney's opposition in the course of denying parole. Petn., Ex. 22 at 307-311, 315.
As he has here, in the superior court petitioner argued that the presence of this information in petitioner's file prevented the panel from considering his application for parole impartially. The superior court rejected petitioner's claim. It first noted that the 2006 panel had referred back to the reasoning of the 2004 panel and then observed that the 2004 panel had told petitioner it would not hold the allegations against him. Petn., Ex. 22 at 375 & Ex. 9 at 120. The court continued:
As part of the April 21, 2006 decision, information from the Ventura District Attorney and the police department ...