The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner now proceeding through appointed counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, convicted of second degree murder with an enhancement for use of a deadly weapon, was sentenced to a term of sixteen years to life with the possibility of parole in 1997. Petition, p. 1. Raising three grounds, petitioner has challenged the decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole at a hearing on September 30, 2009, which decision became final on January 28, 2010. See Petition, pp. 17- 94; 99-228*fn1 (copy of hearing transcript). Claims 2 and 3 were previously dismissed from the instant petition.*fn2 See Orders, filed on February 7, 2011 and April 26, 2011. Thus, this matter proceeds only as to the first ground, that BPH's unlawful practice of denying parole in 99.7% of initial parole hearings denied him an individualized parole consideration, which this court has understood as a "bias of the adjudicator" due process claim. See Order, filed on Feb. 7, 2011, p. 1, fn. 1. Pending before the court is respondent's motion to dismiss, filed on June 27, 2011, to which petitioner filed his opposition on July 22, 2011, and respondent filed a reply on August 2, 2011.
Petitioner, in his remaining claim that the BPH's "unlawful practice of denying parole in 99.7% of initial parole hearings deprived [him] of an individualized consideration for parole," notes that due process is required by both the state and federal constitutions before any person can be deprived of life, liberty or property. Petition, p. 58. Petitioner, who filed his petition pro se, goes on to argue that the state parole scheme creates a constitutionally protected liberty interest in parole for those prisoners serving life sentences with the possibility of parole, citing, inter alia, In re Rosenkrantz, 29 Cal.4th 616, 660 ,128 Cal. Rptr.2d 104 (2002) (noting state constitutional and statutory provisions give rise to a protected liberty interest under California's due process clause setting limits to governor's review of parole decision) He cites Cal. Penal Code § 3041(b)*fn3 and In re Lawrence, 44 Cal.4th 1181, 1221, 82 Cal. Rptr.3d 169 (2008), in support of his contention that once a prisoner is eligible for parole, the BPH must grant it unless the prisoner is determined to be unsuitable because he or she currently poses an unreasonable risk of danger to public safety. Id. Citing a number of cases, petitioner maintains that parole is the rule by state statute and state regulation rather than the exception as recognized by most state courts of appeal, citing a litany of primarily state appellate court cases. Id. Petitioner avers that the BPH's practice of denying parole in 99.7% of initial parole hearings violates the mandate of Cal. Penal Code § 3041 "normally" to grant parole when prisoners first become eligible. Id., at 59. Petitioner evidently predicates this percentage estimation on a declaration he submits as Exhibit M to his petition, submitted by an associate attorney, Thomas Master, at UnCommon Law, who was appointed as one of the attorneys representing the petitioner class consisting of life term inmates with untimely hearings under Cal. Penal Code §§ 3041 and 3041.5 in a Marin County Superior Court case, In re Rutherford, et al., Case No. SC135399A. The declaration is dated September 16, 2010, and states that, in relevant part, of the 5,848 initial hearings resulting in a decision over the ten and one-half years between January 2000 and January 2010, there were only 20 prisoners granted parole or .03%. Petition, Ex. M ¶ 5. Petitioner points to the BPH commissioner in his own hearing wherein petitioner avers he was told he was the best candidate for parole the commissioner had seen, that he had successfully rehabilitated, and that he put the R in CDCR; notwithstanding, the BPH simply refused to grant parole at initial hearings. Petition, p. 59. Petitioner's claim is that this alleged practice violates the statutory presumption that prisoners will be granted parole at initial hearings. Id.
Respondent moves for summary dismissal under Rule 4 of the Rules Governing § 2254 Cases, on the ground that petitioner has failed to state a cognizable claim for federal habeas relief under § 2245(a) and (d) and moves for dismissal under Rule . Motion to Dismiss (MTD), pp. 1-2. Respondent contends that petitioner's claim that the BPH's refusal to grant parole at initial parole consideration hearings is based on alleged errors of state law and fails to identify any federal law entitling him to relief. Id., at 2. Respondent is correct to the extent that he argues that, under § 2254(a) and (d), federal habeas relief is unavailable to state prisoners unless he or she "is in custody in violation of the Constitution of laws... of the United States." MTD, p. 4; citing 28 U.S.C. § 2254 (a); Premo v. Moore, ___ U.S. ___, 131 S. Ct. 733, 737 (2011)(stating that under § 2254(d), there can be no federal habeas relief "with respect to any claim a state court has adjudicated on the merits unless, among other exceptions, the state court's decision denying relief involves 'an unreasonable application' of 'clearly established Federal law, as determined by the Supreme Court of the United States'"); Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1418-19 (2009) (under § 2254(d)(1), "a federal court may not grant a state prisoner's habeas application unless the relevant state-court decision 'was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States'").
Respondent observes that petitioner bears the burden in pleading the grounds for relief -- a higher burden than that of ordinary civil proceedings -- and must specify the grounds on which he claims relief with the supporting facts of every ground, contending that a petition which fails to allege a violation of federal law may be dismissed for failure to state a claim. MTD, p. 3, citing Rules Governing § 2254 Cases, Rule 2(c); Mayle v. Felix, 545 U.S. 644, 655, 125 S. Ct. 2562 (2005); O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The essence of respondent's argument is that, while petitioner generally references the federal due process clause, he cannot thereby transmute claimed errors of state law into federal violations. Id., citing Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999), which relies, in turn, on Langford v. Day, 110 F.3d 1380, 1389-90 (9th Cir. 1996) (holding that a petitioner "may not  transform a state-law issue into a federal one merely by asserting a violation of due process" and that "alleged errors in the application of state law are not cognizable in federal habeas corpus"); Little v. Crawford, 449 F.3d 1075, 1083 n.6 (9th Cir. 2006); Park v. California, 202 F.3d 1146, 1154 (9th Cir. 2000) (citing the Fifth, Ninth, and Fourteenth Amendments not sufficient to state a due process claim where all arguments related to California evidentiary law). Respondent maintains that the substance of the claim is an alleged violation of the California Penal Code and state case law, averring that petitioner fails to "point to a real possibility of constitutional error." MTD, pp. 3-4, citing O'Bremski, supra, at 420.
Respondent concedes the undersigned's prior characterization of petitioner's claim as one of a biased decision-maker, but argues that petitioner cites no Supreme Court authority in support of a legitimate bias claim under federal law or any other federal claim. Id., at 4. Respondent also contends that petitioner's claim the BPH denied parole while recognizing evidence that he was suitable for parole is a dispute with regard to the evidentiary basis of the BPH decision, a basis on which he is foreclosed from proceeding under Swarthout. Id., at 4, fn. 3.
Petitioner counters that respondent is wrong on the facts and the law and that he invoked the Fourteenth Amendment's due process clause by his claim that the BPH commissioners, despite admitting that he had rehabilitated himself successfully, nevertheless pursued "their unconstitutional and undisputed practice of denying parole in 99.7% of initial parole hearings...." Opposition (Opp.), pp. 1, 4-5. Petitioner argues that the record shows that the BPH denied him parole by applying the undisputed practice or policy in the face of requirements that parole should be "normally" granted to eligible prisoners and despite finding him to be an exceptional parole candidate. Opp., pp. 4-5, citing Petition at Dkt # 1 & Dkt # 19, at pp. 39-42. Petitioner accurately observes that abundant Supreme Court authority supports the principle "that an impartial decisionmaker is fundamental to the due process clause's right to an opportunity to be heard." Opp., pp. 4-5, citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593 (1972) (including a 'neutral and detached' hearing body as among the "minimum due process requirements" for parole revocation hearings); Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610 (1980) ("[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases); Schweiker v. McClure, 456 U.S. 188, 195, 102 S. Ct. 1665 (1982) ("due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities"); Hamdi v. Rumsfeld, 542 U.S. 507, 535, 124 S. Ct. 2633 (2004) (while the full panoply of protections available in other detention settings "may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator"); Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir.), cert. denied, 454 U.S. 1102 (1981) (according the same absolute immunity to BPH officials from civil rights as exists for judges, noting both are required "to render impartial decisions.....").
Petitioner concedes that the petition references state law, but also contends that those state law "references properly outline the contours of the federal liberty interest created by California's statutory scheme, which bestows upon life prisoners a liberty interest in being 'normally' granted parole at their initial parole hearing." Opp., p. 5, citing Cal. Penal Code § 3041(a), Pearson v. Muntz, 625 F.3d 539, 549 (9th Cir. 2010), abrogated on other grounds by Swarthout v. Cooke, ___ U.S.___,131 S. Ct. 859 (substantive state law defines the scope of a federal due process right when that right is created by state law); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, et al., 442 U.S. 1, 12, 99 S. Ct. 2100. Petitioner posits that the California Supreme Court has held that the statutory mandate to 'normally' grant parole signifies that "parole is the rule, rather than the exception." Id., citing In re Lawrence, 44 Cal.4th at 1204 (quoting In re Smith, 114 Cal.App.4th 343, 366 (2003)); see also Dkt.# 1, at 58. "The Board's practice of denying parole in 99.7% of initial hearings conclusively demonstrates that the Board does not "normally" grant parole and that the Board was unlawfully predisposed to deny [petitioner] parole at his initial hearing." Id.
Observing there is a presumption of a lack of bias that must be overcome, respondent argues that petitioner has failed, in his actual allegations, to present a valid bias claim and has not made the requisite specific showing of a conflict of interest. Reply, p. 2, citing, inter alia, O'Bremski v. Mass, 915 F.2d at 422 (a claim of bias may be framed where it is alleged that parole was denied due to a public outcry and the board expressly stated it would do everything legally possible to defer parole). Respondent argues that petitioner has not made a prima facie showing that the BPH panel at his hearing "were subject to competing influences that would sway an ordinary person to disregard official duty in favor of personal interest" and that to accept a bias claim based on petitioner's allegations would necessitate the court's presuming a general bias against parole at initial parole consideration hearings by the BPH and to find that petitioner's challenge to the evidentiary basis of the panel's decision in his case was enough to establish that generalized bias ...