The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, Marcus Smith, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of fifteen years to life imprisonment following a plea in 1983 for second-degree murder. Petitioner challenges the April 2008 decision by the Board of Parole Hearings (the "Board") which denied Petitioner parole. Petitioner presents several claims in his habeas petition; specifically: (1) the Board violated the Ex Post Facto Clause by denying him parole for failing to comply with the applicable "matrix system" ("Claim I"); (2) the Board's denial of parole violated Petitioner's due process and equal protection rights along with his right to be free from cruel and unusual punishment ("Claim II"); (3) the Board's denial of parole violated his plea agreement and since Petitioner was not informed of the consequences of his plea agreement, the plea was not knowing and voluntary ("Claim III"); and (4) the Board's denial of parole violated United States v. Booker, 543 U.S. 220 (2005) because it acted to increase Petitioner's authorized punishment ("Claim IV"). For the following reasons, the habeas petition should be denied.
II. FACTUAL*fn1 AND PROCEDURAL BACKGROUND
On March 11th of 1980, officers were dispatched to the 1300 block of East Holt to investigate a shooting, according to Ron Anderson and other witnesses. Anderson and the victim, Addie (sp) Mae (sp) Rantz (sp) Smith, the estranged wife of inmate Smith, had been westbound on Holt in his -- Anderson's vehicle on the way to work at General Electric. Smith drove alongside of Anderson's car and fired one shot, which hit Anderson in the jaw. Anderson pulled to the curb and got out to seek aid. Smith made a U turn, returned, got out of his vehicle, and fired four shots at the victim who had also gotten out of Anderson's car. She died within minutes of a gunshot wound to her brain.
According to the coroner's report, there were three bullet wounds to her head and one to her shoulder.
(Pet'r's Pet. at p. 35-36.)
In 1983, Petitioner pled guilty to second-degree murder. In April 2008 the Board conducted a subsequent parole consideration hearing. The Board ultimately concluded that Petitioner was not suitable for parole and that he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.
Petitioner challenged the Board's decision in the County of San Bernardino Superior Court via a state habeas petition. On August 12, 2008, that court denied the state habeas petition in a written decision. Petitioner's state habeas petition was summarily denied by the California Court of Appeal, Fourth District, Division Two. On October 16, 2008, the California Supreme Court summarily denied the state habeas petition. In December 2008, Petitioner filed the instant federal habeas petition.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d). Nevertheless, where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrande, 538 U.S. 63 (2003).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned decision with respect to Claim I and Petitioner's due process argument within Claim II is from the County of San Bernardino Superior Court. Petitioner raised his remaining arguments (except Claim IV) to the California Supreme Court which issued a summary denial. Thus, with respect to those arguments the standard is also whether the state court was objectively unreasonable in its application of clearly established federal law. See Harrington v. Richter, No. 09-587, -- S.Ct. --, 2011 WL 148587, at *9 (Jan. 19, 2011) ("Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by a showing there was no reasonable basis for the state court to deny relief.")
Petitioner did not raise Claim IV to the California Supreme Court. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005). As Petitioner never raised Claim IV to the California Supreme Court it is deemed unexhausted. See 28 U.S.C. § 2254(b)(1). Nevertheless, unexhausted claims may "be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies in the courts of the State." 28 U.S.C. § 2254(b)(2). A federal court considering a habeas ...