The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
David James Kwiatkowski, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Kwiatkowski is currently in the custody of the California Department of Corrections, incarcerated at the California Medical Facility, Vacaville, California. Respondent has answered, and Kwiatkowski has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In September 1996 Kwiatkowski was convicted in the Shasta County Superior Court of Assault on a Child Causing Death under California Penal Code § 273(a) and (b). The trial court sentenced Kwiatkowski to an indeterminate prison sentence of fifteen years to life. Kwiatkowski does not challenge his conviction or sentence in this proceeding.
In May 2008 Kwiatkowski appeared before the California Board of Parole Hearings ("Board") for his initial parole consideration hearing. The Board denied Kwiatkowski parole for a period of two years. Kwiatkowski timely challenged the decision of the Board in a habeas proceeding in the Shasta County Superior Court, which denied his petition is an unreported, reasoned decision. The California Court of Appeal, Third Appellate District, denied his subsequent petition for habeas relief without opinion or citation to authority, and the California Supreme Court did the same on January 13, 2010. Kwiatkowski timely filed his Petition for relief in this Court on February 21, 2010.
Because the facts surrounding the conviction are well known to the parties and are unnecessary to an understanding of this decision, they are not repeated here.
II. GROUNDS RAISED/DEFENSES
In his Petition Kwiatkowski raises two grounds: (1) the action of the Board was unsupported by sufficient evidence; and (2) requiring a prisoner to express sufficient insight as a condition of granting parole violates the Ex Post Facto Clause. Respondent does not assert any 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 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.'"*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 trial is whether the error had a
substantial and injurious effect or influence in determining the
outcome.*fn9 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.*fn10
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.*fn11
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn12 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.*fn13 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.*fn14
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.*fn15
This is considered as the functional equivalent of the appeal process.*fn16 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.*fn17 This ...