FINDINGS AND RECOMMENDATIONS
Petitioner Carl Thomas Henderson, a state prisoner, proceeds pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner challenges the execution of the indeterminate life sentence he is serving for a first degree murder conviction. In particular, petitioner challenges a November 3, 2004 decision of the state parole authority that he was not suitable to be released on parole.*fn1
In 1982, a jury found petitioner guilty of first degree murder with use of a firearm. He was sentenced to an indeterminate term of twenty seven years to life in state prison. His minimum eligible parole date passed in November of 1999.
On November 3, 2004, a panel of the Board of Prison Terms ("Board") conducted a second subsequent (third overall) hearing to determine petitioner's suitability for parole. After considering various positive and negative suitability factors, the panel concluded that petitioner would pose an unreasonable risk of danger to society if released, and thus that he was not suitable for parole.
Petitioner sought habeas corpus relief in the Los Angeles County Superior Court. The petition was denied for failure to state a prima facie claim for relief. The same petition presented to the California Court of Appeal, Second District, was likewise denied, and the California Supreme Court denied review.
Petitioner presents the following three grounds for relief, verbatim: Ground one: The Board of Prison Terms' finding of unsuitability and denial of parole was unsupported by any evidence in the record in violation of petitioner's due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution.
Ground two: Petitioner's procedural due process rights were violated during the hearing by the introduction of and reliance on evidence not made available to him before the hearing as required under state law.
Ground three: The Board of Prison Terms violated petitioner's due process rights by promulgating and applying regulations that are inconsistent with the governing statutes concerning parole determinations.
For purposes of this opinion, petitioner's three grounds for relief will be addressed together in a single discussion regarding the process due under federal law at a parole suitability hearing in California.
IV. 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 be granted only for violations of the Constitution or laws of the United States. 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, ...