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 three years at his second subsequent parole consideration hearing held on July 7, 2008. 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 1987 judgment of conviction entered against him in the Ventura County Superior Court following his conviction on charges of second degree murder with the use of a weapon and burglary. See In re Birdwell, 50 Cal. App.4th 926 (1996). Pursuant to his conviction for second degree murder, petitioner was sentenced to twenty-two years to life in state prison. (Dkt. 11-1 at 11; Pet. at 78.)*fn1
Petitioner's second subsequent parole consideration hearing, which is placed at issue by the instant petition, was held on July 7, 2008. (Pet. at 65.) *fn2 At the time of that hearing, petitioner had served approximately seventeen years in prison. (Id. at 78.) Petitioner's minimum eligible parole date was June 13, 2000. (Id.) At his 2008 hearing the Board panel found petitioner not suitable for parole and denied parole for three years. (Id. at 197.)
It appears from exhibits attached to respondent's answer that on approximately November 4, 2008, petitioner filed a petition for writ of habeas corpus in the Ventura County Superior Court challenging the Board's 2008 decision. (Dkt. 11-1 at 13-50, 53.) It also appears that the Superior Court denied that petition in a reasoned decision on the merits. (Id. at 7.)
Petitioner subsequently challenged the Board's 2008 decision in petitions for writ of habeas corpus filed in the California Court of Appeal for the Second Appellate District and in the California Supreme Court. (Dkt. 11-1 at 1; 11-5 at 2; 11-7 at 2, 3.) Those petitions were summarily denied. (Dkt. 11-4 at 2; 11-7 at 2, 3.)
The Board described the facts of petitioner's commitment offense at the July 7, 2008 parole suitability hearing as follows:*fn3
Birdwell, when first interviewed, denied he had killed the victim.
He remembers drinking all night and walking down the street and the victim stopping to talk to him. The victim told him it would be all right to visit Joyce Jensen and then drove off. When he arrived at the victim's residence, he was invited in. They talked and drank beer. The victim gave him a 50-dollar check and loaned him his mother's car. When he left, the victim was alive. Later on in his statements for the courts, he remembers going to the trailer to visit his mother. From the front door, the victim started yelling obscenities at him to get off his property. During the verbal altercation, Birdwell picked up a piece of wood. The victim talked him into dropping the piece of wood to go into the kitchen to talk.
Once in the kitchen, the victim started staring and accusing him of stealing. As he started to leave, the victim jumped him from behind and placed him in a chokehold. He stated, "I flipped out. I had no self-control." He recalled reaching for the . . . knives, but does not recall how the victim's throat became slashed. Birdwell said he forged and cashed the victim's check so that he would have money to leave the area. He ransacked the house to make it look like a burglary and took the wallet and put it in the fish tank, so it would appear like it was a robbery. (Pet. at 90-91.) Petitioner declined to discuss his commitment offense at the 2008 parole suitability hearing. (Id. at 88.)
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, 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 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).
In his first ground for relief, petitioner claims that the Board's 2008 decision finding him unsuitable for parole violated his right to due process. (Pet. at 4, 34-35.) He alleges that the Board has improperly continued to rely on the unchanging factors of his commitment offense and juvenile record to find him unsuitable, even though he has never been convicted of any other violent felony. (Id.) Petitioner explains that the commitment offense was the result of significant stress in his life "which is not likely to recur." (Id. at 34.) He argues that his criminal record is no longer predictive of his current dangerousness. (Id. at 35.)
In his second ground for relief, petitioner claims that the Board's 2008 decision violated the Establishment Clause of the First Amendment because it was improperly based on his refusal to "join and memorize 12-steps of the AA/NA program which involves accepting the 'God' concept." (Id. at 4.) Petitioner argues that he was denied parole "for not accepting a state compelled religious program." (Id.) He states that although the Board told him he was not required to attend AA meetings, "it is clear that petitioner's desire not to work the 12 steps of AA was used as a factor to deny him parole and was made part of that decision." (Id.) Petitioner explains that he is an "Asatru/Odinist" and that coerced participation in AA/NA would violate his beliefs. (Id. at 37.) He states that because he believed it "would do more harm than good to try and explain this at the hearing," he simply told the Board that "he works the steps." (Id.)
In his third ground for relief, petitioner claims that the Board in 2008 improperly found him unsuitable for parole because he declined to discuss the facts of his crime. (Id. at 5, 38-40.) Petitioner explains that although he discussed the facts of the crime at all previous hearings and during psychological evaluations, he did not want to talk about the crime in front of his mother, who was present at his 2008 parole suitability hearing. He also states that he does not agree with the Board's theory of how the crime occurred, but believes that if he explains his own theory this "somehow shows a lack of insight or responsibility for the crime." (Id. at 39.) Petitioner argues that the Board's reliance on his refusal to discuss the facts of the crime to find him unsuitable for parole violates various provisions of California law. (Id. at 38-39.)
In his fourth ground for relief, petitioner claims that the Board violated his right to due process when it hired its "own psychologist" who was "beholden" to the Board to evaluate him prior to the 2008 parole hearing. (Id. at 5, 40-43.) Petitioner states that he received "'low risk' positive reports" prior to the 2008 suitability hearing, but that the psychologist retained to provide a report for the 2008 hearing "without any intervening factors . . . elevated petitioner's risk assessment from low to moderate." (Id. at 40.) He argues that the Board's retention of biased psychiatrists is "a masked effort to justify, with 'new evidence' . . . the Board's continuous denial of parole to prisoners who have served their time long after minimum eligible release dates, as is the case here." (Id.) Essentially, petitioner is arguing that the Board is engaging in an improper practice of obtaining psychological reports from those who are under its control to justify finding prisoners unsuitable for parole. Petitioner also contends that the 2008 psychological report contained factual inaccuracies which rendered it unreliable. (Id. at 42.)
In his fifth ground for relief, petitioner claims that the Board members, who are all "ex-law enforcement, or professional victims' rights advocates" do not represent a cross-section of the community and cannot conduct a fair suitability hearing, in violation of his rights under state law and the federal due process clause. (Id. at 6, 46-48.) Petitioner contends that "the BPH has turned into a 'crime fighting' forum influenced by politics, rather than an impartial panel that determines 'current dangerousness' before it 'normally sets parole release dates.'" (Id. at 46.)
In his sixth ground for relief, petitioner claims that the Board improperly based its 2008 decision on his "vague" parole plans even though he demonstrated that he had marketable skills, a place to live and a job offer. (Id. at 6.) Petitioner contends that the Board found his parole plans inadequate on the inappropriate ground that he did not describe his intended place of residence and prospective job in adequate detail. (Id. at 6, 48-49.)
In his seventh ground for relief, petitioner claims that he was denied parole because of political pressure from "the Governor's Office" not to grant parole to life prisoners, in violation of his right to due process. (Id. at 7, 50-51.) He states that commissioners who "set too many parole dates are asked to leave or are terminated." (Id. at 7.) Petitioner states, "[a] Board commissioner cannot be ...