The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Tyrone Forman, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Forman is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. In his Petition, Forman challenges the November 5, 2007, decision of the California Board of Parole Hearings ("Board") denying him parole for a period of two years. Respondent has answered, and Forman has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In March 1988 Forman was convicted in the Los Angeles County Court of one count of Murder in the Second Degree (Cal. Penal Code § 187), with a firearm use enhancement (Cal. Penal Code § 12022.5). The trial court sentenced Forman to an indeterminate prison term of 22 years to life. Forman does not challenge his conviction or sentence in his Petition to this Court.
In November 2007 Forman appeared at a parole-suitability hearing before the Board. After determining that Forman 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 two years. Forman timely filed a petition for habeas corpus relief in the Los Angeles Superior Court. The Los Angeles Superior Court denied Forman's petition in an unpublished, reasoned decision. The California Court of Appeal denied Forman's petition to that court citing In re Dannenburg, 34 Cal. 4th 1061, 1071 (2005) and In re Rosenkrantz, 29 Cal. 4th 616 (2002). Forman's subsequent petition for habeas relief was summarily denied by the California Supreme Court on November 12, 2008. Forman timely filed his Petition for relief in this Court on January 26, 2009.
At Docket No. 16 this Court ordered the parties to advise the Court of: (a) the date of Forman'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. Respondent has complied with that Order. Forman has not responded.
II. GROUNDS RAISED/DEFENSES
In his Petition, Forman raises three grounds: (1) the Board is not properly administering California law; (2) the decision of the Board was unsupported by "some evidence"; and (3) the action of the Board impermissibly alters his sentence from a life sentence with possibility of parole to one of life without possibility of parole. 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 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, that 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, ...