The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who was sentenced in 1992 in Contra Costa County Superior Court to a term of life with the possibility of parole for aggravated mayhem with use of a deadly weapon (flammable liquid), intentionally causing great bodily injury, challenges the 2009 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole. Petition (docket # 1), p. 2 & Exhibit D to Memorandum of Points and Authorities (docket # 2-1), 2009 Parole Hearing Transcript (hereafter, PHT), p. 4*fn1 ; Answer, 2009 Parole Hearing Transcript (hereafter, PHT) (docket # 16-2), p. 8, (docket # 16-3), p. 2.
Petitioner challenges, as arbitrary and capricious, the denial of parole on five grounds: 1) BPH has denied petitioner due process and equal protection for the sixth time for failing to establish the criteria for aggravated mayhem, Cal. Pen. Code § 1168/203, pursuant to their duty under Cal. Penal Code §§ 3041(A), 3041.5 ; 2) "BPH Commissioners Anderson and Goughnour knowingly, willfully, and maliciously relied on" information that was biased, including racially biased, from a BPH "hired gun" psychiatric evaluator unsupported by any prior psychiatric report; 3) BPH commissioners continued "to violate ADA Northern District Court Ordered Stipulation, Due Process, and Equal Protection by using petitioner's medical condition as an element to deny parole plans"; 4) in 1998, 2001, 2002, 2005, 2007 and 2009, BPH commissioners repeatedly used petitioner's commitment offense as a basis for parole denial and now, without supporting judicial authority, have reclassified non-murder petitioner's offense as a murder in violation of his due process and equal protection rights; 5) "BPH has violated the Ex Post Facto." Petition, pp. 6-10.
By order, filed on February 2, 2011, the parties were directed to provide simultaneous supplemental briefing, why the instant petition should not be dismissed in light of 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).*fn2 The parties submitted the additional briefing timely.
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 petitioner himself, in his supplemental briefing (pp. 5-6) , has conceded that Swarthout v. Cooke, 131 S. Ct. 859, forecloses his claims 2, 3 and 4 (with a caveat as to claim 3, addressed below),*fn3 the court will address those claims first and then proceed to consideration of claims 1 and 5.
"Some Evidence" Claims-Claims 2, 3, and 4
Claim 2 As support for petitioner's claim that the BPH panel relied on "bias and racially bias[ed] information from a BPH 'hired gun' evaluator ... not supported by any previous psychiatric report" to deny him parole, petitioner contends that in "[t]he two major categories, Risk for Violence and Overall Risk assessed by Forensic Evaluator Michael L. Venard, Ph.D.," the assessment was contradicted by all prior psychologists and his conclusions included misinformation and inaccurate conjecture as to his juvenile history made up to increase the risk of violence petitioner posed. Petition, p. 7. Petitioner also faults Dr. Venard's conclusion re: "Antisocial / Psychotic" as unsupported by any of the prior psychologists, specifically Drs. Les Carr, H. Ishida, and Tone F. Blanchard, all Ph.D.'s. Id. In his supporting memorandum, petitioner groups the above into a group of "three major categories": "risk for violence, overall risk assessment, and antisocial/psychotic." Memorandum of Points and Authorities [in Support of Petition], hereafter, identified as docket # 2, for ease of reference, p. 6. Petitioner asserts that Dr. Venard was incorrect in stating that petitioner had problems in high school, but petitioner avers he was never suspended for fighting in junior high and never told Dr. Venard that he had been. Docket # 2, pp. 8-9. Petitioner also contends that his efforts to "reconstruct the ambiguousness of the crime" are genuine and do not show a lack of insight. Id., at 9.
In the BPH transcript, Dr. Venard's assessment included discussion of petitioner's negative disciplinary history, his lack of recent participation in AA or NA, the results of a battery of tests which included a score that placed petitioner "in the high range of clinical construct of psychopathy" and a finding that petitioner was "in the moderate risk category for violent recidivism." Docket # 2-1, pp. 60- 61; Answer, 2009 BPH transcript (docket # 16-2), pp. 64-65.*fn4
Petitioner points for comparison to a psychological evaluation by a clinical psychologist named Dr. Carr for a 1998 BPH hearing, which noted his extensive arrest history and long-term drug and alcohol dependence but noted "no evidence of a psychotic or organic impairment," nor evidence of "an antisocial personality structure of a criminal type," his "Christian commitment ... as a therapeutic support system for him," and his "functioning on a high average level of intelligence" and his "industrious" work orientation. Docket # 2-2, pp. 29-30. An excerpt of a clinical assessment of a Dr. Isheda, finds petitioner to be at a "below average risk for violence when compared to the general inmate population," but also notes "[v]iolence potential is unpredicatable in that causative factors are multidetermined." Id., at 32-33. Dr. Blanchard, in an excerpt, finds, inter alia, petitioner's risk of violent recidivism to be average, that his "greatest risk factor"... "is his history of alcohol dependence." Id., at 34. Dr. Blanchard also found petitioner statements about the crime to sound "rehearsed and meaningless" and that he did "not appear to have fully accepted the gravity of his crime." Id. Dr. Blanchard, nevertheless, found petitioner to be "competent and responsible for his own behavior" and to know right from wrong. Id. At the hearing, petitioner objected to Dr. Venard's report as biased/racially biased and when asked to demonstrate how the psychologist showed racial bias, petitioner stated:
Okay. He assessed me because I fathered some children at an early age, that that shows a propensity for violence, or then he uses words like cultural expectations. That's just buzz words, that - - Docket # 2-1, p. 62; Answer, 2009 BPH transcript (docket # 16-2), pp. 66.*fn5
When petitioner was questioned as to how referencing his having children and multiple wives showed a ...