The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Donald Barlow, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Barlow is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. In his Petition, Barlow challenges the February 13, 2009, decision of the Governor reversing the decision of the Board of Parole Hearings granting him parole. Respondent has answered, and Barlow has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Barlow was convicted in the San Diego County Superior Court of one count of Murder in the Second Degree (Cal Penal Code § 187(a)) with the use of a firearm (Cal. Penal Code § 12022.5), and one count of assault with a deadly weapon (Cal. Penal Code § 245(a)). The trial court sentenced Barlow to an aggregate, indeterminate prison term of 17 years to life. Barlow does not challenge his conviction or sentence in this proceeding.
In September 2008 the Board of Parole Hearings, finding that Barlow was suitable for parole, granted him parole. On February 13, 2009, the Governor, finding that Barlow continued to pose an unreasonable risk of danger to the community, reversed the decision of the Board. Barlow timely filed a petition for habeas corpus relief in the San Diego County Superior Court, which denied his petition in an unreported, reasoned decision. Barlow's subsequent petition for habeas relief filed in the California Court of Appeal, Fourth Judicial District, was denied in an unreported, reasoned decision, and the California Supreme Court, with two justices dissenting, denied review on January 13, 2010. Barlow timely filed his Petition for relief in this Court on January 19, 2010.
II. GROUNDS RAISED/DEFENSES
In his Petition Barlow raises a single ground: that the decision of the Governor reversing the Board's grant of parole is unsupported by "some evidence." The Respondent, conceding timeliness and exhaustion of state court remedies, has asserted no affirmative defense.*fn1
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless
the decision of the state court was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" at the time the
state court renders its decision or "was based on an unreasonable
determination of the facts in light of the evidence presented in the
proceeding."*fn2 The Supreme Court has explained that
"clearly established Federal law" in § 2254(d)(1) "refers to the
holdings, as opposed to the dicta, of [the Supreme Court] as of the
time of the relevant state-court decision."*fn3 The
holding must also be intended to be binding upon the states; that is,
the decision must be based upon constitutional grounds, not on the
supervisory power of the Supreme Court over federal courts.*fn4
Thus, where holdings of the Supreme Court regarding the issue
presented on habeas review are lacking, "it cannot be said that the
state court 'unreasonabl[y] appli[ed] clearly established Federal
law.'"*fn5 When a claim falls under the "unreasonable
application" prong, a state court's application of Supreme Court
precedent must be objectively unreasonable, not just incorrect or
erroneous.*fn6 The Supreme Court has made clear that
the objectively unreasonable standard is a substantially higher
threshold than simply believing that the state court determination was
incorrect.*fn7 "[A]bsent a specific constitutional
violation, federal habeas corpus review of [state-court] error is
limited to whether the error 'so infected the trial with unfairness as to make the [result] a denial of
due process.'"*fn8 In a federal habeas proceeding, the
standard under which this Court must assess the prejudicial impact of
constitutional error in a state-court criminal proceeding is whether
the error had a substantial and injurious effect or influence in
determining the outcome.*fn9 Because state court
judgments in criminal proceedings carry a presumption of finality and
legality, the petitioner has the burden of showing by a preponderance
of the evidence that he or she merits habeas relief.*fn10
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn11 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn12 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the petitioner has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn13 This is considered as the functional equivalent of the appeal process.*fn14 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn15 This presumption applies to state trial courts and appellate courts alike.*fn16
After briefing in this case was completed, the United States Supreme Court decided Swarthout v. Cooke.*fn17 This Court must decide the case on the law as it exists at the time this Court renders its decision, and if controlling law changes while the case is pending, this Court applies the law as changed.*fn18 Thus, Cooke forecloses Barlow's arguments vis-a-vis California's "some evidence" rule.
Generally, when a higher court issues new controlling authority after briefing is complete, this Court requests further briefing from the parties addressing the new authority. The Supreme Court decision in Cooke as applied to this case is so clear that further briefing would unduly prolong this case without any possibility of changing the result. The Supreme Court has limited review to the procedures followed by the Board and the governor and defined with care what it meant by the applicable procedures. No longer may this Court consider how the California courts applied California law. Under these circumstances further briefing would not aid this Court in reaching a decision.
It is well-established by Supreme Court precedent that there is no constitutional or inherent right of a convicted person to be conditionally released on parole before expiration of a sentence.*fn19 That a California prisoner has a liberty interest in parole protected by the procedural safeguards of the Due Process Clause of the Fourteenth Amendment is settled.*fn20 Because the only federal right at issue in parole cases is procedural, the relevant inquiry is whether Barlow received due process.*fn21 The Constitution only requires that ...