The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Khalifah E.D. Saif'ullah is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of seven years to life imprisonment following his 1980 conviction of kidnapping for ransom. Petitioner does not contest his conviction in this federal habeas petition. Instead his habeas claims relate to the denial of parole by the Board of Parole Hearings (the "Board") in September 2008. Petitioner also argues that has been subjected to religious persecution while in prison. Finally, Petitioner asserts his Constitutional rights were violated at two prison disciplinary proceedings. More specifically, Petitioner lists his federal habeas claims as follows: (1) he is being denied his liberty interest to parole because there is not "some evidence to substantiate that he is a current risk of danger to society ("Claim I"); (2) the use of two prison disciplinaries to deny him parole did not constitute the requisite "some evidence" of his current dangerousness to society ("Claim II"); his constitutional rights were violated when the Board used illegally obtained evidence which resulted in his prison disciplinaries which were used to deny him parole ("Claim III"); (4) he has been subjected to malicious prosecution by the Board ("Claim IV"); (5) he has been subjected to religious prosecution while in prison ("Claim V"); (6) the reasons used by the Board to deny him parole constituted a violation of his due process and equal protection rights as the reasons given did not meet the requirements of "current dangerousness" to deny Petitioner parole ("Claim VI"); (7) his positive efforts over the years while in prison support his suitability for parole ("Claim VII"); (8) the Board has altered his sentence to one of life without the possibility of parole in violation of the Ex Post Facto Clause by denying him parole ("Claim VIII"); and (9) the decision by the Board in 2008 to deny him parole was predetermined and decided before the actual hearing ("Claim IX"). For the following reasons, the habeas petition should be denied.
II. FACTUAL*fn1 AND PROCEDURAL HISTORY
[O]n August 12, 1978, Petitioner and Co-Defendant approached a couple in the parking lot of a hospital. Petitioner, with a gun, and Co-Defendant robbed the couple of their jewelry, wallet and purse. Co-Defendant also struck the wife breaking her nose. Petitioner and Co-Defendant then took the couple's car keys and fled the scene in a different vehicle. The next day, Petitioner was caught using the couple's stolen credit card and questioned.
On September 26, 1978, Petitioner approached the victim, Kenneth Cohen, at Cohen's work location. Petitioner pointed a gun at Cohen and forced Cohen back into his car. Another Co-Defendant, whom Petitioner met while previously in prison, was also present. Cohen was tied up in the back seat and the three drove to an apartment building where Cohen was held captive. Cohen was chosen as the victim because Co-Defendant, a friend of Cohen's family, knew that the family recently came into $100,000.
Petitioner and Co-Defendant planned to ask for $60,000 in exchange for the safe return of Cohen. Petitioner and Co-Defendant forced Cohen to record a ransom tape stating that he was fine and to give his captors anything they wanted. The tape was intended for Cohen's family. Cohen was then injected with a drug to make him sleep. The next day, Cohen managed to escape while Petitioner was out telephoning Cohen's family. Cohen led police to the apartment and Petitioner was arrested.
The Board found the Petitioner unsuitable for parole after a parole consideration hearing held on September 8, 2008. The Petitioner was denied parole for two years.
(Slip Op. at p. 1-2.) In denying Petitioner parole, the Board stated the following:
[T]he panel reviewed all information received from the public and from you and relied on the following circumstances in concluding that you are not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. And this finding of unsuitability is based on weighing the considerations in the California Code of Regulations Title 15. On September 26, 1978 at approximately 1730 hours the victim, who was Kenneth Cohen, arrived at his work location. And after he parked his car, the inmate approached him, threatened him with a gun and ordered him into his car. A co-participant also got into the car. The inmate drove and the victim was tied up in the backseat. After driving for approximately 20 minutes, they stopped in an apartment building and the victim was told to go in and sit down. This crime was carried out in a dispassionate and calculated manner in that once inside the inmate and his partner tied up the victim, holding him captive and forcing him to make an audio tape to send to his parents saying he was okay and to give the offenders anything they wanted. This victim was abused in that he was injected with some type of drug that the inmate told the victim would make him sleep. Demonstrating callous disregard for human suffering, the inmate and the co-partner then left the apartment. The victim was able to untie himself and get out of the house by using a knife to release the door hinges. The victim reported the crime to the police and led law enforcement officers to the apartment where he thought he'd been kidnapped, identifying the inmate as one of the suspects.
This inmate has an extremely serious criminal history that includes violence, assaults and prior criminality with an escalating pattern of criminal conduct. This inmate has suffered juvenile probation, juvenile parole, time in the county jail. He's had a CYA commitment, prison commitment and commitment to camps and he has skipped bail. As a juvenile, this inmate had a history of arrest, robbery, burglary, auto theft, possession of marijuana and weapons. The inmate reported he was first arrested at 12 years old for stealing a bicycle. At 15 years old he was sent to a juvenile camp for a month. At 17 years old he was sent to CYA for armed robbery. When the inmate and other wards were discovered in possession of marijuana, he was given an additional year at the California Youth Authority. Discharged from parole in 1976, the inmate was already in adult custody.
The inmate has an extensive history of arrests as an adult. His first arrest was for burglary where the inmate and an accomplice stole a TV from an elderly woman's home. The inmate initially denied involvement in most of the crimes for which he was arrested but later admitted his involvement. On March 25th, 1976 the inmate was committed to state prison for burglary first and paroled on October 12th, 1977. Following parole, the record shows a three year history of robbery, burglary and forgery arrests, eventually ending with his arrest for the two robberies and the controlling offense. At the time the inmate was tried for the commitment offense, he was also convicted of two counts of armed robbery in Los Angeles and San Mateo counties and received prison sentences. The first robbery was of an elderly couple in Los Angeles. According to police reports, the couple was leaving a restaurant when the inmate and his accomplice accosted them and forced them into their vehicle at gunpoint. They took the victim's money, jewelry, watches, wallets and credit cards. The co-participant broke one victim's nose by hitting her in the face with his gun as she tried to flee the car. The inmate was arrested when he tried to use the victim's credit card to buy stereo equipment. The second robbery took place at a restaurant bar in Palo Alto. The inmate and a co-participant entered a bar, sat down and requested change. When the waitress attempted to make the change, the offenders order the employees and the customers to the floor at gunpoint and stole money from the cash register. The inmate was given seven years for the Los Angeles armed robbery and nine years for the Palo Alto crime. [Petitioner] has spent 28 years in prison. The inmate reported that he started drinking alcohol at 15 to 16 years of age and that he started smoking marijuana at about the same time, eventually smoking a joint a day. In the past, the inmate has claimed he has not used since 1986. Today he said it was 1980. The inmate has been married four times, twice while in prison. This inmate has a GED and he's taken programing in the Career Development Institute. He's a Certified Paralegal by his own testimony today. He has received exceptional work reports as the Islamic Clerk but he's currently unassigned. A number of chronos were read into the file regarding his religious positions and as a caretaker in the chapel. This inmate has never achieved a vocational certification save for his paralegal training. This inmate has been -- claims to be on the wait list for self-help, but otherwise he has no upgrades in the self-help area whatsoever.
The inmate has a total of 17 serious disciplinary violations, including the two most recent in 2007 for business dealing by an inmate, operating a paralegal business inside the institution. And the panel did note the inmate's 1987 drug trafficking 115, especially in view of his lack of self-help and his claim that basically he has no issues with drugs. This inmate also has 17 128(a)s. And normally these are not even mentioned because they are counseling chronos. However, it is notable that the inmate's most recent 128(a) is in 2007 and that was for excessive physical contact, which most frequently is adjudicated as a 115. But the pattern that is shown by the plethora of 128(a)s, 17 of them, indicates further the inmate's failure to be able to follow the rules, and they are very simple rules, inside the prison setting, in addition of course to his 115s or serious disciplinary violations. So up until very recently this inmate had continued to display negative behavior in prison.
As to the psychological report, the most current, using the psychometric instruments which are now standard for the Forensic Assessment Division, the report, having been done on September 12, 2007 by Dr. Jatinder Singh . . . Dr. Singh notably opines under insight that [Petitioner] does not view himself as a criminal, and that in fact is the tenor that this inmate expressed during today's hearing. He views himself as an individual who didn't consider consequences and repeatedly followed the direction of older individuals, making some very bad decisions. In fact, the clinician further opines that he minimizes the role of his own decision making and his criminal activity, including the commitment offense and did not, with the clinician, discuss his behavior with other victims.
As to diagnostic impressions, the clinician diagnosed this inmate on Axis I with alcohol Abuse By History and Cannabis Abuse by History and on Axis II with Antisocial Personality Disorder and Narcissistic Personality Disorder, both of which the Panel feels they witnessed displayed today. This inmate was diagnosed on Axis V by the clinician with a Global Assessment of Functioning of 80. Under the psychopathy checklist revised, the inmate was assessed to be in the moderate to high range of psychopathy. Under the HCR-20, in the moderate -- under moderate risk of committing another violent crime. And according to the LS/CMI he was placed in the high category, indicating his risk to recidivate generally. Overall, the clinician assessed his inmate as being in the moderate range for both violent and nonviolent offenses if released into the free community. The Panel did weigh this -- the psychological report by Singh. I should also note for the record, this report, standby, this report was reviewed. It was not done in isolation. It was reviewed by Dr. Steven Walker, senior psychological at the Forensic Assessment Division, Board of Parole Hearings. And he did indicate that -- that a new psychological evaluation was not warranted for the current hearing, that Dr. Singh's September 2007 report is a timely diagnostic assessment of the inmate's psychiatric status and observations as to the inmate's progress and both current and estimated future violence. The Panel did note this inmate's responses to the report and made them a matter of record. But the Panel does not feel they were of the substance that would change their conclusions as regard to this report.
As to parole plans, the inmate has indicated that if paroled he would live with his wife, Nahbooba Nasheer Saifulla, in Sacramento. And he did present the Panel with a letter from his wife indicating that he would live with her. He claims being offered, according to the Board report, two different positions from the same employer, Mr. Sam Toplean. And we did in fact have a letter from that gentleman indicating that he would offer him a job with Earth Station Auto Repair. There was just the one job that the Panel noted in the current letter. The inmate also indicated that he would plan to be self-employed as a paralegal in which he appears to have the training to do so. As to Penal Code 3042 responses, responses indicate opposition to the finding of parole suitability, specifically by the District Attorney of Los Angeles County.
In a separate decision, the hearing Panel finds it's not reasonable to expect that parole would be granted a hearing during the following two years. Specific reasons for this finding are as follows. First, the commitment offense. The Panel did consider the commitment offense and does incorporate by reference the details of that crime as presented in the probation officer's report, pages 6 through 8, noting that this was a very callous crime. It was planned and the inmate and the co-partner did in fact put this -- this individual under a great deal of emotional stress as well as some physical stress whenever they forced him to submit to some type of injection, some type of drug that the inmate claimed would make the victim sleep. Fortunately, the victim was not killed. He fortunately was able to escape, get away and fortunately for society also he was able to lead police back to his attackers. Further indication of the planning that went into this crime was that while he was held captive the victim was told that the family had been watched for approximately 18 months. The captors demanded $60,000 ransom. The victim was also photographed by his kidnappers and his stepfather received two phone calls requesting to speak to the victim's mother. The inmate initially lied to police about his involvement in the crime, but the nexus between this crime and today, which this Panel weighed very heavily and is very concerned about, is that this crime was the culmination of a long pattern of very serious criminal history that this -- this inmate has. And then the inmate has come to prison and he's continued to fail to obey the rules of -- in the prison setting. And the inmate's attitude toward his criminality, which he seems to refuse to acknowledge as continuing criminality, is that basically -- and he expressed it himself. You, sir, said I don't see helping someone as a violation of the law. It appears, sir, that you've given yourself permission to violate the law at will. And the Panel found it very interesting in looking through all the documentation we have, noting that back at the time of the probation officer's report, the probation officer commented, on November 13, -- and I quote the probation officer's report, this is page 10. "November 13, 1979, he was found guilty of two counts of armed robbery, given a sentence -- seven year prison sentence. He still has another case pending for robbery in Santa Clara County, California. It appears that nothing, including probation and parole supervision and incarceration, impresses this defendant. As soon as he's released from jail, he's almost immediately involved in another crime. Despite efforts to supervise him in the community and redirect him into more constructive paths, he chooses the lifestyle of the criminal. He has no work history that can be verified and no skills or realistic employment prospects if released. He does not admit guilt in this matter as in the past with other charges he's been involved in. Therefore, there's no reason to believe that this pattern of behavior that's well established by the defendant would ever change."
Now, the Panel is concerned, seriously concerned because that -- that statement was not meant to be totally predictive. It would be hoped that after years of incarceration this inmate's attitude and his ability to obey the rules would have changed. But it apparently has not. And as recently as 2005 at his hearing, Commissioner Welch commented, he said, you need to work on your attitude, continue to work on your attitude. And he says, we're just looking at your last 115, your contempt for authority. You talked about it a little bit. And Commissioner Welch said that your -- your attitude expressed and I quote Commissioner Welch:
"You can't tell me what to do. Well, you get in the community and nobody can tell you want [sic] to do because you just totally ignore the norms, the laws of society out of YA or camp and prison. Nobody out there can tell you what to do either, so that's why you're here in prison and that's why you got to -- demonstrating ina structured environment that you've got it, that you can program. You've got to put some distance between that. You've got to continue to put distance."
And sir, your attitude has continued to this day, because you have continued to ignore the rules. As recently as 2007 you have two serious 115s. And these are very serious, because they involve the safety and security of the institution. That's basically what those rules are about. They're not about you per se. And they're certainly not biased against you. You seem to have the attitude that there is some conspiracy or some general feeling against you because you have chosen the path of Islam. And that's certainly not true, Sir. The Panel sees that for what it is -- appears to be, which is an excuse to minimize your behavior. And you really have minimized those 115s. And that's alarming. Because again, these are serious 115s. We can't underscore that enough. And the fact that you only view them as helping someone out and you don't understand what the purpose of the -- of the rules are and you just mainly walk over them and refuse to -- to follow them just carries on this tradition that you have defined throughout your career, refusing to follow the rules. That's -- That makes it impossible for us to parole you at this time, because you remain a serious risk to society. If you go out with the same attitude and you run roughshod over the rules of society, you'll be right back in. You'll be in trouble again. So it's very important that you -- that you do look at this very seriously. Also today, sir, the Panel heard nothing in terms of your testimony about any remorse for the victim, Kenneth Cohen. It was totally lacking today. Your attorney said you have remorse, but frankly we didn't hear that expression from you. He suffered quite a bit, and this is the reason that we've basically come here today, and yet he didn't really play a very major role today. But he was the one that was the victim. (Pet'r's Pet. Ex. E, at p. 52-63.)
After Petitioner was denied parole by the Board in September 2008, he filed a state habeas petition in the Superior Court of California, County of Los Angeles in January 2009. In that state habeas petition, Petitioner raised the same claims that he raises in this federal habeas petition. The Superior Court of California, County of Los Angeles denied Petitioner's state habeas petition in a written decision on April 6, 2009. Petitioner then filed a state habeas petition in the California Court of Appeal in April 2009 raising the same issues. The California Court of Appeal summarily denied the state habeas petition on April 30, 2009. Petitioner then filed a state habeas petition in the California Supreme Court which raised the same issues. The California Supreme Court summarily denied the state habeas petition on October 28, 2009.
Petitioner filed the instant federal habeas petition on December 2, 2009. Respondent answered the petition on April 1, 2010. Petitioner filed a traverse on April 21, 2010. The matter was reassigned to the undersigned by Chief Judge Ishii on August 23, 2011.
III. 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 only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
IV. ANALYSIS OF PETITIONER'S CLAIMS
A. Claims arising from Parole Denial
i. Claims I, II, IV, VI and VII
Claims I, II, IV, VI and VII all center around the decision of the Board to deny Petitioner parole. Petitioner takes issue with the Board's findings within these Claims. By way of example, Petitioner argues that his due process rights were violated when the Board used an erroneous psychological report as one of the reasons to deny Petitioner parole. Petitioner also objects to the Board's use of two prison disciplinaries as another factor in determining that Petitioner was not suitable for parole at the time of the September 2008 parole hearing. Petitioner argues that he has a liberty interest in parole and that the reasons cited by the Board in denying him parole did not meet the requirements of "current dangerousness." Petitioner also cites to the various positive factors that supported his parole eligibility.
First, to the extent that Petitioner relies on state law and the California state constitution, those issues are not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating that it is not the province of a habeas court to examine state law questions). Nevertheless, Petitioner does not only rely on state law in his federal habeas petition. The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989). The full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 16 (1979).
The landscape of a California state prisoner bringing a due process claim for a denial of parole has changed with the recent United States Supreme Court decision in Swarthout v. Cooke, 131 S.Ct. 859 (2011) (per curiam). Prior to Swarthout, the Ninth Circuit held that as a matter of state law, denial of parole to California inmates must be supported by at least "some evidence" demonstrating current dangerousness. See Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (en banc). In its decision in Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010), rev'd by, Swarthout, 131 S.Ct. 859, the Ninth Circuit had held that "California's 'some evidence' requirement is a component of the liberty interest created by the parole system of the state."
Swarthout reversed the Ninth Circuit in Cooke. The Supreme Court stated regarding a California state prisoner's due process rights with respect to parole that:
Whatever liberty interest exists is, of course, a state interest created by California law. There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. When, however, a state creates a liberty interest, the Due Process Clause requires fair procedures for its vindication -- and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California's received adequate process when he ...