The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOCS. 1, 2)
FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE ACTION
OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on April 30, 2012.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.
The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Here, Petitioner alleges that he is an inmate of the Avenal State Prison (ASP) serving a sentence of fifteen years to life imposed on April 5, 1999, in the Superior Court of the State of California, County of Los Angeles, for second degree murder in violation of Cal. Pen. Code § 187(a). (Pet. 1, 9.) Petitioner pled guilty to the offense. (Id. at 9.) Petitioner complains of constitutional violations allegedly suffered when California's Board of Parole Hearings (BPH) found on May 25, 2010, at Petitioner's initial parole consideration hearing, that he was unsuitable for parole. The BPH ruled that Petitioner's next parole suitability proceeding would not occur for five years. Petitioner seeks a new parole hearing to be held under the laws in effect at the time of his conviction. (Id. at 10, 17.)
Petitioner raises the following claims in the petition: 1) his right to due process of law was violated by the state court's construction of Cal. Pen. Code § 3041 *fn1 ; 2) the decision denied Petitioner's federal right to due process of law because the decision was arbitrary, capricious, and fundamentally unfair as based on an unreasonable determination of facts; 3) Petitioner was denied due process because the parole hearing was fundamentally unfair based on the BPH's reasons for the decision, which were not authorized by California's regulations or statutes; 4) the parole hearing was fundamentally unfair because the decision was arbitrary and capricious, and it was not based on evidence with scientific support but rather was based on a long-standing practice of rarely setting dates at the initial hearing; 5) the parole procedures were unfair because there was no right to contest the evidence ultimately used by the BPH to find an inmate unsuitable; 6) the BPH was not impartial; and 7) the prohibition against ex post facto laws was violated by the retroactive application to Petitioner of California's Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," which on November 4, 2008, effected an amendment of Cal. Pen. Code § 3041.5(b)(3) that resulted in a lengthening of the period between parole suitability hearings.
Petitioner was found guilty of beating to death his girlfriend's daughter, who was two and one-half years old. The probation officer's report stated that Petitioner claimed that the child fell off a bed and into a wall while playing with Petitioner and the victim's six-year-old brother, sustained a bruise to her eye and nose, and several days later could not be roused to consciousness after an attempt to awaken her, which included slapping her in the face a few times and unsuccessfuly attempting cardio-pulmonary resuscitation. Petitioner admitted having slapped the victim with an open hand five times on her bare buttocks because she urinated on herself.
Officers observed that the victim had one black and blue eye swollen shut, one yellowish eye with some black and blue coloring, and bruising on both sides of the rib cage, both arms above the wrists, the thighs and lower leg, and both sides of the buttocks. There were marks on her back and calf, and a cut on her chin. An autopsy attributed the cause of death to blunt force trauma to the head and manual strangulation. The victim's brother described incidents that occurred when their mother, the Petitioner's girlfriend, was not home in which Petitioner would hang the victim in a closet by her hands with her arms outstretched, put the victim in cold baths, tie the victim to the toilet with an electric cord, and hit the victim on her back and buttocks with a belt, causing the victim to cry, scream, and try to bite his fingers. Once when the victim and her brother were jumping on the bed, Petitioner threw the victim, and her head hit the wall very hard. (Pet. 18-20.)
Petitioner alleges that he did not deny that his actions caused the victim's death, but he denies having committed intentional or malicious actions against the victim. (Id. at 22.) Petitioner contends that his denial of a history of domestic violence was misunderstood as a broader denial of culpability for causing the death of a child after beating her. (Id. at 23.)
At the parole hearing, Petitioner appeared with counsel, gave extensive sworn testimony to the commissioners in response to their questions, and was given an opportunity to make a statement, which he declined. (Pet., Ex. B, doc. 2, 35-36, 39-120.) At the beginning of the hearing, both Petitioner and his counsel acknowledged that Petitioner had been informed of his rights with respect to the hearing, and there had been no violations of those rights. (Id. at 37-38.) Petitioner's counsel made a statement in favor of Petitioner's suitability. (Id. at 118-120.) Petitioner was present when the commissioners stated their reasons for finding Petitioner unsuitable for parole. (Id. at 121-133.)
At the hearing, Petitioner accepted the truth of the summary of the facts pertaining to the crime as previously set forth but stated that it was hard to acknowledge all that had occurred; he admitted having slapped the victim's buttocks for urinating, but he denied beating her and maintained that the other bruises were sustained during rough play and a fall while exiting the shower. He denied knowing how the strangulation marks were caused. His explanation for the death was that he did not know how to take care of the child, and he imposed hard discipline. He admitted that she was in cold water because the hot water went away in the shower, but as to the other statements of the victim's brother, Petitioner asserted that the little boy lied, and the victim's other injuries were self-inflicted as a result of her climbing and falling. (Id. at 42-57.) Petitioner admitted gang involvement since he was fifteen, membership in a street gang, and an alcohol problem. (Id. at 77-78, 83.) He admitted that he had difficulty coming to terms with what he had done, and he further admitted that he had told the psychological evaluator that he was not remorseful for the crime because he could not be remorseful for something he did not do. (Id. at 112-116.)
The BPH's reasons for finding Petitioner unsuitable for parole for five years were that Petitioner presented an unreasonable danger to the safety of the public and society. The conclusion was based on the heinous, callous, and cruel nature of the commitment offense and Petitioner's minimization of his conduct and responsibility for the killing. The BPH found that Petitioner was not credible because his version of the crime was inconsistent with the physical evidence. Further, although Petitioner knew that he had made bad decisions, he lacked insight into why he had committed the crime, and he was unable to admit freely facts unrelated to the commitment offense, such as his involvement in gangs. The BPH also relied on Petitioner's criminal history of spousal abuse and possession of a concealed weapon, his unstable social history, two previous failures to succeed on probation, and an unfavorable psychological report, which indicated a moderate risk of psychopathy, recidivism, and future violence. (Id. at 151-153.) The BPH acknowledged that Petitioner had participated well in programs in prison. (Id. at 112-116.)
After the decision of the commissioners became final, Petitioner filed a petition for writ of habeas corpus in the Los Angeles Superior Court. (Pet., App. 3, doc. 1, 85-90.) Although Petitioner characterizes the court's order as a summary denial (pet. 10), a review of the order reveals that the court set forth its reasons for denying the petition. The court concluded that the record of the parole hearing contained some evidence to support the determination that Petitioner currently presented an unreasonable risk of danger to society and a threat to public safety, and thus he was not suitable for parole. (Id.) Further, the application of Marsy's Law to Petitioner did not violate the prohibition against ex post facto laws. (Id.)
Petitioner sought habeas corpus from the Court of Appeal of the State of California, Second Appellate District, which denied the petition summarily on July 12, 2011. (Pet., App. 2, doc. 1, 83-84.)
On January 25, 2012, a petition for writ of habeas corpus filed by Petitioner in the California Supreme Court was summarily denied. (Pet., App. 1, doc. 1, 81-82.)
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).
Title 28 U.S.C. § 2254 provides in pertinent part:
(d) 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.
Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410.
A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011).
IV . The State Court's Construction of Cal.
§ 3041 as a Violation of Due Process of Law
Petitioner argues that his right to due process of law and his protected liberty interest under Cal. Pen. Code § 3041 were violated by the state court's construction of Cal. Pen. Code § 3041, which constituted an unreasonable enlargement of the statute, failed to restrict administrative discretion, and permitted the denial of parole in the vast majority of cases. Petitioner argues that the state court's construction of § 3041 is contrary to the terms of the statute, contrary to state regulations, and a misapplication of legislative intent. Petitioner contends that a construction that permits the BPH to deny parole to the overwhelming majority of prisoners serving indeterminate sentences perverts the statute and the liberty interest created by the statute; further, it renders individual parole hearings per se unfair and predisposed.
Before proceeding further to address the more precise contentions involved in Petitioner's due process argument, two basic principles that limit this Court's review of the state court decisions must be considered.
First, the Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures with respect to the liberty interest. Swarthout v. Cooke, 562 U.S. --, 131 S.Ct. 859, 861-62 (2011).
However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates of Neb. Penal and ...