The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2007 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole at his initial parole consideration hearing. Petitioner, in 1990, was convicted of first degree murder with a firearm use enhancement, for which he was sentenced to a term of 25 years plus an additional two years for use of a firearm for a total of 27 years to life. Petitioner raises eight grounds to challenge the BPH decision denying parole: 1) bias of BPH "readily apparent from the record" violated petitioner's constitutional right to due process and equal protection; 2) "no adequate or even legitimate support in the record" for BPH denial in violation of petitioner's constitutional right to due process and equal protection; 3) BPH's "pretextual assertion that petitioner has not yet been adequately rehabilitated violates state law establishing the purpose of incarceration"; 4) BPH violated state law in failing "to set a primary term is - a duty mandated by state law that is entirely separate from its task of determining current parole suitability"; 5) petitioner's due process and equal protection rights were violated because BPH followed a "no parole" policy and decision must be vacated; 6) because petitioner has passed the "Minimum Expected [sic] Parole Date," "the state's present custody of petitioner is unlawful"; 7) Linda Shelton, the presiding commissioner of petitioner's BPH panel, was fired for bias; 8) state courts' decisions [habeas petition denials] were "'contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court," and "were based on an unreasonable determination of the facts." Petition, pp. 7-8.
On February 4, 2011, petitioner's motion for an extension of time to file a traverse was denied as moot and both parties were ordered to provide supplemental briefing regarding the recent United States Supreme Court decision that found that the Ninth Circuit erred in commanding a federal review of the state's application of state law in applying the "some evidence" standard in the parole eligibility habeas context. Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 861 (2011).*fn1 Petitioner's motion for an extension of time to file a supplemental brief was granted, by order filed on February 24, 2011.
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 the State court proceeding.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004). Accordingly, "a habeas court must determine what arguments or theories supported or . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) -- i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).
The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner "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." Harrington, supra, 131 S.Ct. at 786-787. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S. Ct. 362, 366 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8, 123 S.Ct. at 365. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Finally, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law. James v. Ryan, __ F.3d __, 2012 WL 639292 *18-19 (9th Cir. 2012).
Because many of the claims can be more efficiently addressed if the court begins by considering the second claim first, the undersigned will begin with claim 2, then move to claims 3, 4, and 6, after which claims 1, 5 and 7 will be addressed, finally ending with claim 8.
"Some Evidence" Claim -- Claim 2
In claim 2, petitioner argues that there was no legitimate support in the record for BPH's parole suitability denial.*fn2 Petition, pp. 7-8, 21-36.*fn3 Claim 2 includes the following subclaims: that the U.S. Constitution applies a more stringent standard of review in a parole denial than does California's "some evidence" standard; that the BPH unsuitability finding was not supported by "some evidence" in the record or by the required preponderance of the evidence standard; that the BPH assertion that the crime was "especially cruel and callous" lacks adequate support; that there is not a legitimate nexus between petitioner's prison disciplinary history and the BPH finding of parole unsuitability and that the BPH improperly relied on the unchanging circumstances of the commitment offense in denying parole. Petition, pp. 7-8, 21-36.
The parties timely filed supplemental briefing, but as was set forth in the earlier order (docket # 34), and notwithstanding petitioner's argument, there appears to be no federal due process requirement for a "some evidence" review. Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court recently re-affirmed that "'federal habeas corpus relief does not lie for errors of state law.'" Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. at 861. Id. While the high court found that the Ninth Circuit's holding that California law does create a liberty interest in parole was "a reasonable application of our cases" (while explicitly not reviewing that holding),*fn4 the Supreme Court stated:
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.
Swarthout v. Cooke, at 862.
Citing Greenholtz,*fn5 the Supreme Court noted it had found under another state's similar parole statute that a prisoner had "received adequate process" when "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout v. Cooke, at 862. Noting their holding therein that "[t]he Constitution  does not require more," the justices in the instances before them, found the prisoners had "received at least this amount of process: They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied." Id.
The Supreme Court was emphatic in asserting "[t]hat should have been the beginning and the end of the federal habeas courts' inquiry...." Swarthout v. Cooke, at 862. "It will not do to pronounce California's 'some evidence' rule to be 'a component' of the liberty interest...." Id., at 863. "No opinion of ours supports converting California's "some evidence" rule into a substantive federal requirement." Id., at 862. Thus, federal courts are precluded from review of the state court's application of its "some evidence" standard. Claim 2 is essentially based entirely on alleged violations of California's "some evidence" requirement.
The copy of the transcript of BPH initial parole consideration hearing at issue in this action demonstrates that petitioner was amply "allowed an opportunity to be heard" at the hearing and was undisputedly "provided a statement of the reasons why parole was denied."
Swarthout, at 862; see Answer, Exhibit 3(a) (docket # 29-4), pp. 56-127*fn6 through Ex. 3(b) pp. 2-42.
According to the Supreme Court, the Constitution does not require more than his having been provided an opportunity to be heard and provided a statement of reasons for the parole denial, which the record unequivocally demonstrates that he received. Claim 2 should be denied.
State Law Claims -- Claims 3, 4, & 6
Claims 3, 4 and 6 are claims predicated on alleged violations of state law. A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis of some transgression of federal law binding on the state courts. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is unavailable for alleged error in the interpretation or application of state law. Middleton v. Cupp, 768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178 (1972).
The Supreme Court has reiterated the standards of review for a federal habeas court. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991). In Estelle v. McGuire, the Supreme Court reversed the decision of the Court of Appeals for the Ninth Circuit, which had granted federal habeas relief. The Court held that the Ninth Circuit erred in concluding that the evidence was incorrectly admitted under state law since, "it is not the province of a federal habeas court to re-examine state court determinations on state law questions." Id. at 67-68, 112 S. Ct. at 480. The Court re-emphasized that "federal habeas corpus relief does not lie for error in state law." Id. at 67, 112 S. Ct. at 480, citing Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092, 3102 (1990), and Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874-75 (1984) (federal courts may not grant habeas relief where the sole ground presented involves a perceived error of state law, unless said error is so egregious as to amount to a violation of the Due Process or Equal Protection clauses of the Fourteenth Amendment).
The Supreme Court further noted that the standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted)." Id. at 68, 112 S. Ct. at 480. The Court also stated that in order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness," Id. at 73, 112 S. Ct. at 482, and that "we 'have defined the category of infractions that violate "fundamental fairness" very narrowly.'" Id. at 73, 112 S. Ct. at 482. Habeas review does not lie in a claim that the state court erroneously allowed or excluded particular evidence according to state evidentiary rules. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). As more recently re-emphasized by the Supreme Court, "'a mere error of state law ... is not a denial of due process.'" Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 1454 (2009) (quoting Engle v. Isaac, 456 107, 121, n. 21, 102 S. Ct. 1558  (1982)).
Petitioner contends that the BPH's "pretextual assertion that petitioner has not yet been adequately rehabilitated violates state law establishing the purpose of incarceration." Petition, p. 37. He argues that any "agency-created regulations, policies, or other interpretations of statutory authority" the BPH has applied to demonstrate suitability "are invalid and unenforceable because they violate the express legislative intent underlying the Determinate Sentencing Law." Id. Petitioner contends that the legislative intent underlying the codification of the DSL included a recognition that "the concept of 'rehabilitation' was invalid," and that all felony offense sentences were to "reflect culpability and to provide uniformity of punishment." Id. Petitioner states that demands that he undergo therapy and other forms of rehabilitation (which he avers are unavailable anyway) ignored the statement in Cal. Pen. Code §1170(a)(1), which sets forth "that the purpose of incarceration is punishment."*fn7 Petition, p. 37. Petitioner also claims that recent CDCR*fn8 proclamations setting rehabilitation as a priority "would violate the ex post facto doctrine of state law and the United States Constitution." Id. Petitioner alleges that the BPH violated his state and federal right to due process by continuing his custody on the basis that he was not sufficiently rehabilitated, as the legislature has found the concept of rehabilitation to be "archaic" and "disproven." Id. Petitioner does not pinpoint specific areas within the BPH transcript that he faults, asserting only that the BPH made "vague demands for additional 'rehabilitation'" and that to do so was "illicit" in light of the state legislature's intent. Id., at 37-38. Petitioner elaborates at some length on what he believes to be the legislative intent in the 1977 enactment of the DSL and maintains that the BPH has violated "the express legislative intent and authority of the DSL" to the extent that it has denied him parole on the basis of a lack of rehabilitation. Id., at 37-40.
Petitioner's claim that the BPH's alleged reliance on rehabilitation is in violation of the theory underlying California's Determinate Sentencing Law is not one that is cognizable in this federal habeas corpus action. Rivera, 556 U.S. 148, 129 S.Ct. at 1454 ("a mere error of state law ... is not a denial of due process"). In his supplemental briefing, petitioner, apparently perceiving in response to respondent apparently perceiving that claims regarding state law violations do not constitute a ground for a federal habeas petition (see Answer, p.7, and respondent's supplemental briefing (RSB), p. 2), argues that his claim is that his Fourteenth Amendment procedural due process rights were violated by the liberty interest that he contends the state laws or regulations give rise to and that the state court's failure to hold an evidentiary hearing on his claims requires this court to do so. Petitioner's Supplemental Briefing (PSB) (docket # 40), p. 3. To the extent that petitioner seeks to implicate the parole denial as a federal due process violation because the BPH panel urged petitioner to engage in prison self-help programs and to make an effort to improve his institutional behavior (noting that petitioner had received 23 115's and 33 128's),*fn9 this claim must also be rejected. As set forth above, the United States Supreme Court has recently held that under the federal due process clause petitioner is entitled only to an opportunity to be heard and a statement of the reasons for the denial of parole. Because petitioner had his opportunity to be heard and received a statement of reasons for the denial of parole, the decision did not violate his right to due process.
Petitioner's claim that the application of any post-DSL requirement that petitioner show some form of rehabilitation before being released on parole is an ex post facto violation is wholly without merit. Simply because Cal. Pen. Code § 1170(a)(1) states that the purpose of determinate sentencing is punishment does not foreclose the CDCR from requiring an inmate to show some evidence of his rehabilitation before being released on parole. The current suitability criteria for parole are set forth in CAL. CODE REGS. tit.xv, § 2402(d) for murders committed on or after November 8, 1978, and the offense, murder of his grandfather, for which petitioner was convicted in 1990, occurred on October 16, 1983. Answer, Ex. 1(b) docket # 29-2, p. 48. Among those factors indicating that a petitioner is unsuitable for parole is that he "has engaged in serious misconduct in prison or jail" and a factor showing suitability includes that his institutional behavior includes activities that "indicate an enhanced ability to function within the law upon release." § 2402(c)(6) & (d)(9). Petitioner at his hearing did not deny an extensive record of institutional misconduct (see below). To be an ex post facto violation at a minimum would require that criteria applied to him post-dated the date of his commitment offense which petitioner has not shown. "The Constitution's Ex Post Facto Clause prevents the government from retroactively altering the definition of, or increasing the punishment for, a crime. California Dept. of Corrections v. Morales, 514 U.S. 499, 504-05 (1995) (citing Collins v. Youngblood, 497 U.S. 37, 41 (1990).)" Sesma v. Hernandez, 2007 WL 3243853 * 6 (S.D. Cal. 2007). Accordingly, petitioner is not entitled to federal habeas relief on this claim.
In his fourth claim, petitioner contends that the BPH violated state law by failing "to set a primary term ... - a duty mandated by state law that is entirely separate from its task of determining current parole suitability" at his 2007 initial parole consideration hearing. Petition, p. 41. The gravamen of this claim is that petitioner, sentenced under the DSL, is entitled to a primary term-setting date separately from any date for parole suitability as occurred under the preceding Indeterminate Sentencing Law (ISL). Id., at 41-49. Petitioner claims that he is entitled to the setting of a primary term, because under the newer DSL, none of the due process protections provided by the ISLwere revised or repealed and it would somehow be a due process and/or ex post facto violation not to apply to petitioner, a life prisoner with possibility of parole, the ISL practice of setting a primary term commensurate with his commitment offense, separate and apart from any finding that a prisoner is suitable for parole. Id. Petitioner does not frame an ex post facto claim when he, properly sentenced under a later law, the DSL, claims to be entitled to the provisions of an earlier statute because an ex post facto claim could only arise if one could legitimately claim that a new law with more onerous provisions was being imposed upon one who had been convicted or sentenced under an older, less onerous law.
Petitioner takes issue with state court decisions that have determined that the transition from the regulations of the ISL to those of DSL did not impose more onerous suitability guidelines and therefore did not implicate ex post facto issues. Petition, referencing In re Duarte, 143 Cal. App.3d 946, 193 Cal. Rptr. 176 (1983), and In re Seabock, 140 Cal. App.3d 29, 40, 189 Cal. Rptr. 310 (1983). Petition, pp. 44-45. Petitioner relies primarily on In re Stanworth , 33 Cal. 3d 176, 187 Cal. Rptr. 783 (1982), which determined that an inmate found suitable for parole in 1979 was entitled to parole consideration under both ISL and DSLguidelines and the earlier release date of the two applications because the change from ISL to DSL did invoke ex post facto principles. However, Stanworth, unlike the issue raised by petitioner,"dealt ... with the setting of parole release dates (i.e., fixing his term of imprisonment) after the inmate had already been found suitable for parole. Sesma, 2007 WL 3243853 * 5 [emphasis in original], citing Stanworth, 33 Cal.3d at 178-179). California's parole guidelines require the setting of a "base term for each life prisoner who is found suitable for parole." CAL. CODE REGS. tit.xv, § 2403(a). The "base term" is "established by utilizing the appropriate matrix of base terms" provided in CAL. CODE REGS. tit.xv, §§ 2403, 2403(a). Petitioner, in not yet having been found suitable for release on parole, has not met the "prerequisite for the determination of a 'base term' and the calculation of a parole date." Murphy v. Espinoza, 401 F.Supp.2d 1048, 1055 (C.D. Cal. 2005); see also Irons v. Carey, 505 F.3d 846, 851 n. 3 (9th Cir. 2007) (A "'determination of an individual inmate's suitability for parole under section 3041, subdivision (b) must precede any effort to set a parole release date under the uniform-term principles of section 3041, subdivision (a)'") (quoting In re Dannenberg, 34 Cal.4th 1061, 1079-80, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005)); Cal. Pen. Code § 3041(b) (The BPH "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting"); CAL. CODE REGS. tit.xv, § 2402(a) (The BPH "shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [BPH] the prisoner will pose an unreasonable risk of danger to society if released from prison."). "In other words, absent a determination of parole suitability by the [BPH], there is no 'base term.'" Murphy, 401 F.Supp.2d at ...