The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Mario Infante, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Infante is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. In his Petition, Infante challenges the February 27, 2007, decision of the California Board of Parole Hearings ("Board") denying him parole for a period of three years. Respondent has answered, and Infante has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In January 1987 Infante was convicted on a guilty plea in the Orange County Superior Court of one count of Murder in the First Degree (Cal. Penal Code § 187), one count of Robbery (Cal. Penal Code § 211), with firearm enhancements. The trial court sentenced Infante to an indeterminate prison term of 26 years to life. Infante does not contest his conviction or sentence in his Petition to this Court.
In June 2007 Infante appeared at his second parole-suitability hearing before the Board. After determining that Infante would pose an unreasonable risk of danger to society or a threat to public safety if released from prison at that time, the Board denied him parole for a period of three years. Infante timely petitioned the Orange County Superior Court for habeas corpus relief. The Orange County Superior Court denied Infante's petition in an unreported, reasoned decision. The California Court of Appeal summarily denied Infante's petition to that court. Infante's subsequent petition for habeas relief was summarily denied by the California Supreme Court on November 12, 2008. Infante timely filed his Petition for relief in this Court on January 26, 2009.
At Docket No. 22 this Court ordered the parties to advise the Court of: (a) the date of Infante's last parole-suitability hearing before the Board; (b) the decision of the Board at that hearing; and (c) the current status of any proceedings in the California state courts related to the Board's decision. The Court further ordered the parties to submit supplemental briefing addressing the issue of whether the Petition should be dismissed as moot. The parties have responded.
II. GROUNDS RAISED/DEFENSES
In his Petition, Infante raises a single ground: that the decision of the Board was unsupported by "some evidence." Respondent asserts 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 State court
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 [proceeding] 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 defendant 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
Although this Court directed the parties to advise the Court of any subsequent parole-suitability hearings before the Board and brief the question of mootness, the mootness question has, itself, become moot. In the interval, 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 Infante'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 is so clear that further briefing would appear to unduly prolong this case without any possibility of changing the result. The Supreme Court has limited federal habeas 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 ...