The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, AMENDED FINDINGS AND RECOMMENDATIONS
Petitioner, Richard Lewis, is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-five years to life plus two years after his conviction in 1981 of first degree murder with a firearm enhancement. Petitioner challenges the September 2004 decision by Governor Schwarzenegger reversing the April 2004 decision by the Board of Prison Terms (the "Board") which had granted Petitioner parole. Petitioner presents several claims in his petition; specifically: (1) the Governor did not exercise his discretion in the manner required by California Penal Code § 3041 in reversing the Board ("Claim I"); (2) the Governor exceeded his authority when he denied parole by concluding that Petitioner's commitment offense involved the infliction of torture ("Claim II"); (3) the Governor's decision denying parole did not comport with due process because the Governor's decision regarding the circumstances of the commitment offense was not supported in the record ("Claim III"); the Governor's decision on the factors surrounding the commitment offense violated Petitioner's due process rights because it was arbitrary and capricious ("Claim IV"); (5) the Governor's decision violated Petitioner's due process rights because it relied on the unchanging factors of Petitioner's commitment offense ("Claim V"); and (6) the Governor's role in reversing the Board's decision violated the Ex Post Facto Clause ("Claim VI"). Petitioner requests: (1) an order to show cause; (2) an order to conduct discovery and/or an evidentiary hearing; and (3) an order for supplemental briefing. For the following reasons, the November 24, 2010 Order, Findings and Recommendations is vacated. Additionally, Petitioner's requests are denied and it is recommended that his federal habeas petition be denied.
II. FACTUAL*fn1 AND PROCEDURAL BACKGROUND On the evening of July 26, 1980, Richard Lewis murdered 33-year-old Richard Cain by shooting him multiple times with a .22-caliber revolver.
On the day of the murder, Mr. Lewis' girlfriend told him that Mr. Cain had made unwanted sexual advances at her two months earlier. Mr. Lewis became very angry and subsequently told his girlfriend's sister, who was married to Mr. Cain at the time, "If you care anything about [Mr. Cain], you better tell him to get out of town."
Afterward, Mr. Lewis and his girlfriend's brother obtained a revolver and some bullets. After loading the weapon, Mr. Lewis put it under the driver seat of his car. The two men then went to the home of Mr. Lewis' girlfriend, where they found Mr. Cain.
Mr. Lewis a short while later suggested that the men go out to get some marijuana and Mr. Cain decided to go along. Mr. Lewis drove instead to a remote location, where he ordered Mr. Cain out of the car and pulled out the revolver. He then shot Mr. Cain once in the buttocks and once in the chest. Either before or in between shots, Mr. Cain asked, "What did I do?" As Mr. Cain lay wounded on the ground, Mr. Lewis gave the revolver to his girlfriend's brother and told him to shoot Mr. Cain. The brother refused, and gave the revolver back to Mr. Lewis. Mr. Lewis then walked over to where Mr. Cain lay, lifted Mr. Cain's head by the chin to look him in the face, and said, "Richard Cain, I want you to know who's doing this to you." Mr. Lewis then shot Mr. Cain twice in the side of the head, killing him. (Resp'ts' Answer, Ex. 3.) In 1981, Petitioner was convicted of first degree murder with a firearm enhancement. On April 20, 2004, the Board conducted a subsequent parole consideration hearing. The Board ultimately concluded that the Petitioner was suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. On September 13, 2004, the Governor reversed the Board's decision and found that Petitioner would continue to pose an unreasonable risk of danger to society if paroled at that time.
Petitioner challenged the Governor's decision denying him parole in the Fresno County Superior Court via a state habeas petition. The Superior Court denied Petitioner's state habeas petition on January 6, 2005. In denying the petition, that court stated the following:
Having reviewed the petition for writ of habeas corpus transferred from the superior court in the County of Marin and filed on December 28, 2004, the court finds no error justifying the requested relief. (Cf. In re Van Houten, (2004) 116 Cal.App.4th 339, In re Smith (2003) 114 Cal.App.4th 343, In re McClendon (2003) 113 Cal.App.4th 315, In re Capistran (2003) 107 Cal.App.4th 1229, and In re Rosenkrantz (2002) 29 Cal.4th 616.) The petition is denied.
(Resp'ts' Answer, Ex. 5 at p. 2.) On March 3, 2005, the California Court of Appeal, Fifth Appellate District summarily denied the petition without discussion or citation. On February 1, 2006, the California Supreme Court summarily denied the petition stating, "Petition for writ of habeas corpus is denied. (See In re Rosenkrantz (2002) 29 Cal.4th 616.)." (Resp'ts' Answer, Ex. 7a at p. 2.)
In March 2006, Petitioner filed the instant federal habeas petition. After an answer and a traverse were filed, Petitioner was appointed counsel in December 2007. On November 5, 2009, Petitioner was released on parole. Petitioner was then ordered to show cause why his habeas petition should not be dismissed in light of his release from prison on parole. Petitioner responded to the order to show cause. On March 10, 2010, this Court concluded that the action would not be dismissed in light of the fact that "plaintiff could still benefit by a favorable ruling that may result in the shortening of his parole."
On November 24, 2010, the undersigned issued Findings and Recommendations which recommended that Petitioner's federal habeas petition be denied. The Petitioner filed objections to the findings and recommendations and the Respondents filed a reply to Petitioner's objections.
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 as in this case, 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). Recently, the United States Supreme Court reiterated that, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by a showing that there was no reasonable basis for the state court to deny relief." Harrington v. Richter, No. 09-587, -- S.Ct. --, 2011 WL 148587, at *9 (Jan. 19, 2011).
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.").
IV. DISCUSSION OF PETITIONER'S CLAIMS A. Claim I
In Claim I, Petitioner asserts that the Governor did not exercise his discretion in the manner required by California Penal Code § 3041. California Penal Code section 3041 sets forth the state's legislative standards for determining parole for life-sentenced prisoners. Section 3041(a) provides that, ""[o]ne year prior to the inmate's minimum eligible release date a panel . . . shall again meet with the inmate and shall normally set a parole release date." Cal. Penal Code § 3041(a). However, subsection (b) states an exception to the regular and early setting of a life sentence term if the Board determines "that the gravity of the current convicted offense or offenses, or the timing and gravity of current or ...