The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Michael J. Heller, a state prisoner appearing pro se,*fn1
filed a Petition for Habeas Corpus under 28 U.S.C. § 2254.
Heller is currently in the custody of the California Department of
Corrections and Rehabilitation, incarcerated at the Avenal State
Prison. Respondent has answered, and Heller has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial in the San Bernardino County Superior Court, in August 2003 Heller was convicted of Murder in the Second Degree under California Penal Code § 187, Possession of Marijuana for Sale under California Penal Code § 11359, and Possession of Narcotics under California Penal Code § 11350(a). The trial court sentenced Heller to an indeterminate prison term of nineteen years to life. Heller does not challenge his conviction or sentence in this proceeding.
In January 2005 the Board of Prison Terms ("Board") granted Heller parole. In June 2005 the Governor reversed the decision of the Board. After exhausting his state-court remedies, Heller timely filed his Petition for relief in this Court on December 8, 2005. On November 22, 2010, this Court, adopting in part and rejecting in part the Findings and Recommendations of the Magistrate Judge, granted Heller's Petition and ordered him released to parole status.*fn2 On June 29, 2011, the Court of Appeals for the Ninth Circuit reversed the judgment and remanded the case to this Court.*fn3
The facts underlying Heller's conviction and the balance of the procedural background are well known to the parties and are set forth in detail in the Findings and Recommendations of the Magistrate Judge.*fn4 Consequently, they are not repeated herein except as necessary to understand this decision.
II. GROUNDS PRESENTED/DEFENSES
In his Petition, Heller raised four grounds: (1) that the decision of the Governor was unsupported by "some evidence"; (2) the amendment to California Penal Code § 3041.2 conferring on the Governor veto powers over decisions of the Board violates the Ex Post Facto Clause; (3) the Governor's reversal violated Heller's right to a jury trial; and (4) § 3041.2 and the "some evidence" standard of review are unduly vague. Respondent has not asserted any affirmative defense.*fn5
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."*fn6 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."*fn7 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.*fn8 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.'"*fn9 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."*fn10 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.*fn11 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn12 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn13 Because state court judgments of conviction and sentence 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.*fn14
The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn15
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn16 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn17 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn18
Under California's unique habeas procedure, a prisoner 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.*fn19
This is considered as the functional equivalent of the appeal process.*fn20 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.*fn21 This ...