The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Michael Hughley, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Hughley is currently in the custody of the California State Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered, and Hughley has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In June 1988 Hugley was convicted following a jury trail in the Los Angeles County Superior Court of one count of Murder in the Second Degree (Cal. Penal Code § 187) and one count of Assault with a Firearm (Cal. Penal Code § 245). The trial court sentenced Hughley to an aggregate prison term of 23 years to life. The California Court of Appeal affirmed Hughley's conviction and sentence on appeal, and the California Supreme Court denied review. Hughley does not challenge his conviction or sentence in his Petition.
In February 2006 Hughley made a subsequent appearance before the California Board of Prison Hearings ("Board"). Finding that he was unsuitable for parole, the Board denied Hughley parole for a period of three years. Hughley timely filed a petition for habeas relief in the Los Angeles County Superior Court, which was denied in an unreported, reasoned decision. Hughley's subsequent petition for habeas relief in the California Court of Appeal was denied in an unreported decision, citing In re Rosenkrantz (2002) 29 Cal. 4th 616, 667 [59 P.3d 174, 222]. The California Supreme Court summarily denied Hughley's petition for habeas relief without opinion or citation to authority on April 9, 2009. Hughley timely filed his Petition for relief in this Court on April 19, 2008.
Because the facts underlying Hughley's conviction are not at issue in this proceeding, they are not repeated here. While this case was pending, the Supreme Court handed down its decision in Swarthout v. Cooke.*fn1 This Court requested that the parties file supplemental briefing addressing the effect of Cooke on this case. The parties have complied.
II. GROUNDS RAISED/DEFENSES
In his Petition, Hughley contends he was denied due process because: (1) the Board's decision was unsupported by some evidence: (2) the statutory and regulatory standards under which the Board determines suitability are unconstitutionally vague;*fn2 and (3) in failing to provide "a departmental designee," the Board violated Cal. Penal Code § 3041.7. Hughley requests that he be granted a new hearing.*fn3 Respondent does not assert an affirmative defense.*fn4
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."*fn5 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."*fn6 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.*fn7 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.'"*fn8 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.*fn9 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.*fn10 "[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.'"*fn11 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.*fn12 Hughley has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn13
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn14 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn15 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.*fn16 This is considered as the functional equivalent of the appeal process.*fn17
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 the expiration of a sentence.*fn18 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.*fn19
Because the only federal right at issue in this case is procedural, the relevant inquiry is whether Hughley received due process.*fn20 The Constitution only requires that a prisoner be allowed an opportunity to be heard and be provided with a statement of the reasons why a parole is denied, nothing more.*fn21 Hughley contends that the decision of the Board was unsupported by some evidence as required by California law.*fn22 "[I]t is of no federal concern . . . whether California's 'some evidence' rule of judicial review (a procedure beyond what the Constitution demands) was correctly applied."*fn23 California prisoners are allowed to speak at their parole hearings and to contest ...