FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his parole consideration hearing held on March 12, 2009. Petitioner claims that the Board's decision violated both the Ex Post Facto Clause and his right to due process. The matter has been fully briefed by the parties and is submitted for decision. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied on his due process claim and that his Ex Post Facto claim be dismissed without prejudice.
Petitioner is confined pursuant to a 1991 judgment of conviction entered against him in the Los Angeles County Superior Court following his conviction on two counts of second degree murder. (Doc. 1, Ex. A.) Pursuant to that conviction, petitioner was sentenced to fifteen years to life in state prison. (Id.)
The parole consideration hearing that is placed at issue by the instant federal habeas petition was held on March 12, 2009. (Doc. 1-2.) Three days prior to that hearing, on March 9, 2009, the Los Angeles County Superior Court granted petitioner's habeas corpus petition challenging the denial of his parole at a suitability hearing held in 2008. (Doc. No. 1 at
10.) In its order, the Los Angeles County Superior Court found that there was no evidence in the record before the Board in 2008 that petitioner was then a current danger to society. (Doc. 1-4 at 1-4.) The Superior Court remanded the matter to the Board "to reconsider its decision and to conduct a new hearing within ninety days to determine Petitioner's eligibility for parole in accordance with the requirements of due process." (Id. at 4.) However, the parties were unaware of the Superior Court's order when they appeared three days later at petitioner's next regularly scheduled parole suitability hearing, on March 12, 2009. (Doc. No. 1 at 11.)
Petitioner appeared at and participated in the hearing on March 12, 2009. (Doc. No. 1-2 at 6, et seq.) Following deliberations held at the conclusion of that hearing, the Board panel announced their decision to deny petitioner parole for three years as well as the reasons for that decision. (Id. at 139-48.) Subsequently, petitioner challenged the Board's March 12, 2009 decision in the Los Angeles County Superior Court, apparently explaining to the Superior Court that its March 9, 2009 decision was not known to the parties at the time of his March 12, 2009 parole hearing. According to petitioner, the Superior Court ordered the Board to conduct a new hearing compliant with its order. However, after a series of motions and orders in the trial court, it vacated its order for a new hearing because the herein-contested March 12, 2009, hearing -- despite the Board's having reached the same conclusion based on the same findings that the trial court had rejected -- allegedly complied with due process, a conundrum the trial court proposed to resolve by directing: "Petitioner is free to challenge the validity of the Board's March 12, 2009, order and to raise every issue he deems appropriate [again]." (Id.; see also Doc. No. 1-4 at 6.)
Petitioner then challenged the Board's March 12, 2009 decision to deny him parole in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court. (Answer, Ex. 1.) Therein, petitioner claimed that the Board's decision to deny him parole violated his right to due process because there was insufficient evidence before the Board that he posed a current risk to public safety if released. (Id.) In addition, petitioner argued that the Board's decision to defer his next parole suitability hearing for three years violated the Ex Post Facto Clause of the United States Constitution. (Id.) The Los Angeles County Superior Court denied the petition in a decision addressing the merits of petitioner's claims. (Answer, Ex. 2.) Petitioner subsequently challenged the Board's 2009 decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the Second Appellate District. (Answer, Ex. 3.) That petition was denied with citations to In re Lawrence, 44 Cal.4th 1181 (2008), In re Shaputis, 44 Cal. 4th 1241 (2008), In re Dannenberg, 34 Cal.4th 1061, 1070-71 (2005), and In re Rosenkrantz, 29 Cal.4th 616 (2002). (Answer, Ex. 4.) Petitioner subsequently filed a petition for review in the California Supreme Court. (Answer, Ex. 5.) That petition was summarily denied. (Answer, Ex. 6.)
On October 21, 2010, petitioner filed his federal application for habeas relief in this court.
II. Standards of Review Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied ...