FINDINGS AND RECOMMENDATIONS
Petitioner, Clifford Bair, 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 twenty-seven years to life in prison with the possibility of parole following his conviction for first degree murder with a penalty enhancement for false imprisonment in the Sonoma County Superior Court. Here, Petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence, and specifically, the March 30, 2007 decision by the Board of Parole Hearings finding him unsuitable for parole.
Petitioner alleges several grounds for relief in his pending petition. Specifically, Petitioner's claims are as follow:
(1) The Parole Board failed to prove unsuitability with evidence.
(2) The Parole Board violated his right to due process of law.
(3) Continued reliance on unchanging factors to deny parole commutes his sentence from twenty-seven years to life into a sentence of life without the possibility of parole.
(4) The Parole Board continues to violate section 3041(a)(b) of the California Penal Code.
(5) The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") violates the ex post facto clause of the United States Constitution.
(6) Denial of parole based upon the language of title 15, section 2402(c)(1)(A)-(E) of the California Code of Regulations is impermissible because the terms of the regulation are unconstitutionally vague.
Because the allegations in Petitioner's first four claims all assert due process violations, they will be addressed together herein as a single issue in section (V)(A), below. Petitioner's claims five and six are considered separately in sections (V)(B) and (V)(C), respectively. 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:
[O]n or about January 20th, 1984, your ex-wife, Linda Bair, left her home in Visalia to visit with family members in Bodega Bay. She had left you back at her home in Visalia without any transportation. Later that night, Inmate Bair stole a pickup truck and followed his ex-wife to Bodega Bay. You checked into the Harbor View Motel around noontime on January 24th under a false name.
You had been seen at a motel on January 25th, however, the pickup truck was missing. On January 26th, you checked out of the Harbor View Motel and the stolen pickup truck was discovered about a mile and a half from Bodega Bay down in a ravine totally burned up. The pickup truck was stripped of its license plate when found. On January 26th, you purchased a six-pack of beer, a sandwich, a package of peanuts, and some potato chips at the Dry Dock Cafe. The Dry Dock Cafe is approximately 75 yards away from Ms. Teresa Aiken's house and forms a triangle with the Harbor View Motel. Apparently you had been a resident of Bodega Bay a few years earlier and had done some yard work for the victim, Teresa Aiken, during that time. During the afternoon of January 26th, you went to Mrs. Aiken's house, overpowered her, took her eyeglasses, rendering her almost blind, tied her up, and gagged her. You then placed her underneath her bedding and mattresses on the floor of her bedroom. At approximately 4:00 to 4:15 p.m., Ms. Rose Fomasi came over to deliver Ms. Aiken's mail. After Ms. Fomasi entered the house, you pulled a gun and ordered her to lay down on the floor in the bedroom and not to look at your face. You then tied up Ms. Fomasi with the electrical wire from Ms. Aiken's iron. You then left the residence taking Mrs. Aiken's eyeglasses, keys, and her car.
Later that night, you abandoned Mrs. Aiken's car after getting stuck on the shoulder of the Lakeville Highway across from Gilardi's resort. Gilardi is spelled G-I-L-A-R-D-I. You then stole an ocean going sailboat from ...