The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Richard Gonzales, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Gonzales is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered, and Gonzales has replied.
In August 1998 Gonzales was convicted in the Orange County Superior Court of Murder in the Second Degree (Cal. Penal Code § 187) and sentenced to an indeterminate prison term of fifteen years to life. Gonzales does not challenge his conviction or sentence in this proceeding.
In February 2009 Gonzales appeared in a parole suitability hearing before the California Board of Parole Hearings ("Board"). The Board, finding that Gonzales continued to pose a continuing risk of danger to society if released from prison, denied parole. The Board, applying Cal. Penal Code § 3041.5, deferred Gonzales's next parole suitability hearing for three years.
The Orange County Superior Court denied Gonzales's petition for habeas relief in a reasoned decision. The California Court of Appeal, Fourth Appellate District, summarily denied Gonzales's petition for habeas relief without opinion or citation to authority, and the California Supreme Court did the same on December 17, 2009. Gonzales timely filed his Petition in this Court on January 24, 2010.
II. GROUNDS RAISED/DEFENSES
Gonzales raises two grounds for relief: (1) that the Board's application of the 2008 amendment to California Penal Code § 3041.5 (Marsy's law) to him violates the Ex Post Facto Clause, United States Constitution Article I section 10, and (2) that the decision of the Board denying parole is not supported by sufficient evidence. Respondent does not assert any affirmative defenses.
III. PRIOR PROCEEDINGS BEFORE THIS COURT
In February 2011 the Magistrate Judge entered Findings and Recommendations recommending that Gonzales's Petition be denied.*fn1 Gonzales's objection notwithstanding, this Court adopted the Findings and Recommendations in full,*fn2 and judgment was entered denying the Petition and denying a Certificate of Appealability (COA) .*fn3 Gonzales timely appealed and sought a COA from the court of appeals, and on January 24, 2012, a panel of the Court of Appeals vacated and remanded in an unreported decision:*fn4
We grant the request for a certificate of appealability with respect to the issue of whether the district court properly denied appellant's 28 U.S.C. § 2254 petition without specifically addressing his ex post facto claim, see 28 U.S.C. § 2253(c)(3), Slack v. McDaniel, 529 U.S. 473, 483-85 (2000), and summarily vacate the district court's March 28, 2011, dismissal order and judgment. This case is remanded to the district court with instructions that the district court review and enter an order and judgment resolving the ex post facto claim raised in appellant's 28 U.S.C. § 2254 petition.*fn5
After remand, the assigned Magistrate Judge entered Findings and Recommendations recommending that the Petition be denied.*fn6 Gonzales filed objections to those Findings and Recommendations,*fn7 and they were withdrawn.*fn8 Thereafter the reference to the Magistrate Judge was withdrawn and this case was reassigned to this Court.*fn9
The Court has reviewed the entire record with particular attention to any documents filed after remand from the Ninth Circuit. The record is complete and the case is ripe for decision. In making its decision, this Court has also considered the arguments raised by Gonzales in his objections.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn10 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn11 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn12 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn13 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn14 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn15 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn16 In a federal habeas proceeding, the ...