The opinion of the court was delivered by: Terry J. Hatter, Jr. United States District Judge
ORDER: DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY
On March 6, 2012, Petitioner, a prisoner in state custody, filed a 28 U.S.C. § 2254 habeas petition ("Petition"), with supporting exhibits ("Pet. Ex."). Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires the summary dismissal of Section 2254 petitions "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, 28 U.S.C. foll. § 2254. The Court has concluded that summary dismissal of the Petition is required, because federal habeas relief is foreclosed for the reasons set forth below.
In 1993, Petitioner was convicted of second degree murder, with a true finding on a California Penal Code § 12022.5(a) (use of a firearm) enhancement. He was sentenced to 15 years to life with the possibility of parole. (Petition 2; Pet. Ex., transcript of April 27, 2010 hearing before the State of California Board of Parole Hearings ("HT") 3.)
On April 27, 2010, Petitioner appeared before the Board of Parole Hearings ("Board") for a subsequent parole consideration hearing, which is the proceeding at issue in this action. (Petition at 3; HT, passim.) Petitioner was represented by counsel at the hearing. (HT 4.) Petitioner acknowledged that, prior to the hearing, he received a document listing his rights in connection with the parole consideration hearing and reviewed them with a counselor. (HT 8-9.) Petitioner's attorney stated that he had discussed with Petitioner his rights and the format for the parole consideration hearing. (HT 9-10.) Petitioner stated that he would prefer to have his attorney speak on his behalf and answer questions for him during the hearing. (HT 7, 11.) Thereafter, Petitioner's attorney, as well as Petitioner at times, answered the Board's questions regarding the circumstances of the commitment offense, Petitioner's prior criminal history, his conduct in prison (including disciplinary infractions, work and educational history, self-help program efforts, and psychological treatment), his parole plans, and his psychological evaluations. (HT 13-23, 28-31, 34-36.) Petitioner's counsel presented a closing argument regarding Petitioner's suitability for parole. (HT 40-43.) Petitioner declined to make a closing statement. (HT 40, 43.)
Following the hearing, the Board found Petitioner unsuitable for parole, concluding that he poses an unreasonable risk of danger if released from prison. (HT 46.) The Board specifically explained the reasons for its decision and set a ten-year deferral period for Petitioner's further consideration for parole. (HT 46-62.) (Hereafter, the "Board Decision.")
Petitioner sought habeas relief in the trial court, the California Court of Appeal, and the California Supreme Court. (Petition at 6.) The trial court reviewed the record and concluded that there is some evidence to support the Board's decision that Petitioner constitutes a current threat to public safety. (Pet. Ex., April 20, 2011 order of the trial court, citing In re Lawrence, 44 Cal. 4th 1181, 1210, 82 Cal. Rptr. 3d 169, 189 (2008).) Both the California Court of Appeal and the California Supreme Court denied relief summarily. (Pet. Ex., June 14, 2011 Order of the California Court of Appeal, and February 1, 2012 Order of the California Supreme Court.)
PETITIONER'S HABEAS CLAIM
Petitioner's sole claim is as follows:
The Board of Parole Hearings' decision to deny me parole is not supported by facts amounting to some evidence that I am currently dangerous and that my release will unreasonably endanger public safety.
(Petition at 3, referring generally to the HT and Lawrence, supra.)
California's parole scheme contemplates that a prisoner sentenced to a term of life with the possibility of parole must be found suitable for parole before a parole date can be set. California Penal Code § 3041(b) and related implementing regulations set forth criteria for determining whether a prisoner is suitable for parole. See CAL. CODE REGS. tit. 15, § 2402. The prisoner must be found unsuitable and denied a parole date if, in the judgment of the panel, he or she will pose an unreasonable danger to society if released. CAL. CODE REGS. tit. 15, § 2402(a). "[T]he paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety and thus may not be released on parole." Lawrence, 44 Cal. 4th at 1210, 82 Cal. Rptr. 3d at 189. As a matter of California law, a finding that a prisoner is unsuitable for parole must be supported by "some evidence" that he currently poses such a threat. See id. at 1212, 82 Cal. Rptr. 3d at 190; In re Shaputis, 44 Cal. 4th 1241, 1254, 82 Cal. Rptr. 3d 213, 222-23 (2008).
The claim alleged in the Petition challenges the validity of the Board Decision under California law. Petitioner contends that California's "some evidence" requirement was not satisfied by the factors on which ...