Opinion
Civil No. 05cv0313-W(POR).
December 30, 2005
REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Robert Castle ("Petitioner") is a California prisoner serving an indeterminate sentence of twenty-five years to life for first degree murder. Petitioner has served twenty-four years of this sentence. In 1981, Petitioner plead guilty to murder pursuant to a plea agreement. He has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254 asserting that his continued incarceration is in violation of the plea agreement and that the Board of Parol Hearings (Board) erroneously denied him parole, contravening his liberty and due process rights. This Court has reviewed the Petition, Respondents' Answer, Petitioner's Traverse, Petitioner's Supplemental Traverse and all supporting documents. After a thorough review of the record, the Court finds that Petitioner is not entitled to the relief requested and RECOMMENDS that the Petition be DENIED.
II. Procedural History
Petitioner challenges the denial of parole resulting from parole Board hearings in 2003 and 2004. With respect to the 2003 denial, Petitioner filed a Petition for Writ of Habeas Corpus with the state of California Superior Court, which was denied on December 31, 2003 in a written opinion. (Respondent's Exhibit 5, San Diego Superior Court Order Denying Petition for Writ of Habeas Corpus). Petitioner then filed a Petition for Writ of Habeas Corpus in the California Court of Appeal for the Fourth Appellate District, which was denied in a written opinion on January 14, 2004. (Respondent's Exhibit 6, California Court of Appeal Order: In re Robert Castle on Habeas Corpus). Petitioner filed for review in the California Supreme Court and was denied without comment or citation on February 23, 2005. (Respondent's Exhibit 7, Supreme Court of California Order: In re Robert Castle on Habeas Corpus).With respect to the 2004 denial, Petitioner filed a Petition for Writ of Habeas Corpus with the state of California Superior Court, which was denied on September 22, 2004 in a written opinion. (Petitioner's Exhibit A, San Diego Superior Court Order Denying Petition for Writ of Habeas Corpus). On March 2, 2005, the California Supreme Court denied the 2004 parole denial claim.
Based on the record before the Court, the date Petitioner filed his state petitions for writ of habeas corpus are not apparent, however, those dates are not determinative of the issues in the instant petition.
On February 14, 2005, Petitioner filed a federal Petition for Writ of Habeas Corpus with this Court, which was followed by a First Amended Petition on April 13, 2005. On July 15, 2005, Respondent filed an Answer to the Petition, supported by a Memorandum of Points and Authorities and Exhibits 1 through 9, including: the sentencing transcript, the probation officer's report, the 2003 Board of Prison Terms Hearing Transcript, and orders of the San Diego Superior Court, the California Court of Appeal and the California Supreme Court denying habeas corpus relief for the 2003 denial. On September 6, 2005, Petitioner filed a Traverse to Respondent's Answer, supported by a Memorandum of Points and Authorities and exhibits including the Board of Prison Terms Parole Consideration Hearing Transcripts of June 14, 2004 and his Parole Suitability Package.
On August 3, 2005, Petitioner filed a "Motion for Leave of Court to Conduct Discovery and Accompanied Statement of Interrogatories and List of Documents Sought to be Produced and Motion for Appointment of Counsel" and a "Motion for Missing Respondent's Exhibits to the Answer to the First Amended Petition for Writ [sic] Habeas Corpus and Request for an Enlargement of Time in Order to File the Traverse." (Docket Numbers 16, 17). On September 6, 2005, this Court addressed both motions in an Order (1) Denying Petitioner's Request for Leave to Conduct Discovery; (2) Denying Petitioner's Request for Appointment of Counsel; (3) Granting Petitioner's Request for Documents Lodged by Respondent; and (4) Granting Petitioner's Request for an Extension of Time to File a Traverse. (Docket Number 18). In that Order, the Clerk of the Court was ordered to forward copies of all Respondent's exhibits to Petitioner and Petitioner was granted until October 3, 2005 to file a Traverse. On November 16, 2005, Petitioner submitted a supplemental Traverse and lodged exhibit A, the Superior Court of California's order denying petition for writ of habeas corpus with respect to the 2004 parole denial.
Because Petitioner's Traverse was also filed on September 6, the day of the Order, Petitioner did not receive copies of the exhibits before filing his Traverse. Petitioner also would not have been aware of the additional time granted to file. Petitioner states in his Traverse that he had still not received the requested exhibits. Therefore, this Court issued an Order on November 18, 2005 giving Petitioner until November 30, 2005 to file the Traverse. Subsequently, Petitioner filed a "Supplemental Traverse." The Court has considered both the initial Traverse and the Supplemental Traverse in reaching this recommendation.
III. Scope of Review
Title 28 U.S.C. section 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a) (West 1994).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to habeas corpus petitions filed after 1996. Lindh v. Murphy, 521 U.S. 320 (1997). The current petition was filed on April 13, 2005, and is governed by the AEDPA. As amended, 28 U.S.C. section 2254(d) now reads:
(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.
28 U.S.C.A. § 2254(d) (West Supp. 2001).
The Court is aware that the Ninth Circuit has pending before it a case in which two judges of the three-judge panel have called into question the application of AEDPA in parole cases. See Irons v. Carey, 408 F.3d 1165 (9th Cir. 2005) (ordering parties to submit supplemental briefs discussing "whether AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction"). In preparing this Report Recommendation, the Court has applied the law of the Ninth Circuit as it presently exists.
The Court is aware that the Ninth Circuit has pending before it a case in which two judges of the three-judge panel have called into question the application of AEDPA in parole cases. See Irons v. Carey, 408 F.3d 1165 (9th Cir. 2005) (ordering parties to submit supplemental briefs discussing "whether AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction"). In preparing this Report Recommendation, the Court has applied the law of the Ninth Circuit as it presently exists.
To obtain federal habeas relief, Petitioner must satisfy either section 2254(d)(1) or section 2254(d)(2). Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets section 2254(d)(1) as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decided a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 529 U.S. at 412-413.
The AEDPA also requires deference be given to state court findings of fact, with state court factual determinations presumed correct unless the petitioner rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (West Supp. 2001). Although claims under section 2254(d)(2) are rare, perhaps because of this deferential standard, a state court decision may be found to be "based on an unreasonable determination of the facts in light of the evidence presented" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), overruled on other grounds by Lindh, 521 U.S. at 320.
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record "to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
In this case, the California Supreme Court denied the 2003 and 2004 Petitions for Writ of Habeas Corpus without comment or citation. Therefore, this Court looks to the reasoned opinion provided by the California Court of Appeal in reviewing Petitioner's claims with respect to the 2003 denial and looks to the Superior Court opinion with respect to the 2004 denial. Nunnemaker, 501 U.S. at 801-06.
IV. Factual History
The facts surrounding the crime are largely undisputed, and are summarized as follows by the Court of Appeal:
Petitioner makes several arguments in his Traverse and supplemental Traverse related to Respondent's alleged misstatements of the circumstances surrounding the incident in the Answer. Petitioner argues the misstatements are evidence of Respondent's efforts to portray Petitioner as a "vicious cold blooded killer." (Traverse at 2-5). This Court does not address Petitioner's concerns in this regard as they are irrelevant with respect to Petitioner's federal habeas claims regarding his parole denials and plea agreement.
Castle and friends went to Balboa Park late at night to drink beer. They ran out of beer and decided to rob someone to obtain money to buy more. Castle approached a young man and agreed to go with him to the man's home. Castle's friends covertly followed. As Castle conversed with the man in his driveway, the friends approached and with Castle took the man's wallet containing $22. When the man started yelling, Castle pulled a knife and stabbed him many times. The man bled to death.
Respondent's Exhibit 6, Court of Appeal Order Denying Petition at 2.
The circumstances of the sentencing are also largely undisputed, as summarized by the Superior Court:
On June 25, 1981, Petitioner plead guilty to one count of first degree murder (Penal Code § 187). In conjunction with the guilty plea, all other charges, counts, allegations and enhancements were dismissed. On August 10, 1981, Petitioner was sentenced to 25 years to life in prison.
Respondent's Exhibit 5, Superior Court Order Denying Petition at 1.
Petitioner now challenges his continued incarceration because he has been inappropriately and repeatedly denied parole, which he also alleges is in violation of his plea agreement-claims which were similarly raised in his state court petitions His claims for the 2003 denial are summarized by the Superior Court:
On August 21, 2003, Petitioner filed a petition for writ of habeas corpus challenging the January 31, 2003 decision of the Board of Prison Terms (Board) denying him parole.
. . .
In addition to Petitioner's claims that the Board failed to respond to his appeal in a timely manner, he contends the Board violated Penal Code § 3046 in failing to consider the sentencing judge's statements and recommendations before denying him parole. Petitioner also challenges the Board's interpretation of a favorable psychiatric report and argues that the Board failed to apply controlling legal principles in denying him parole.Respondent's Exhibit 5, Superior Court Order Denying Petition at 1-2.
Petitioner's claims for the 2004 denial are summarized by the Superior Court:
On August 19, 2004, Petitioner filed a petition for writ of habeas corpus challenging the June 14, 2004 decision of the Board of Prison Terms (Board) denying him parole. Petitioner contends the Board's decision was arbitrary and capricious since it was not supported by the record, that the Board failed to duly consider all relevant factors, and that its reliance on the commitment offense and his prior record was improper. Petitioner also claims the Board failed to weigh his criminal conduct against other instances of the same crime or take its own matrix into account. Finally, Petitioner argues the denial of parole constitutes a breach of his plea agreement.
Petitioner's Exhibit A to Supplemental Traverse, Superior Court Order Denying Petition at 1-2. Similarly, in the instant federal Petition, Petitioner states the following two claims for relief:
Ground 1: "Petitioner is being held in confinement in violation of the United States constitution by the state's refusal to abide by the plea agreement causing the agreement to be constitutionally invalid constituting specific performance and immediate release." (Petition at 6).
Ground 2: "The Board of Prison Terms has erroneously denied parole without evidence to support their decision and failed to provide post-commitment support for its decision of rehabilitation in compliance with penal code section 3041(a) violating Petitioner's liberty interest and due process rights guaranteed under the United States constitution." (Petition at 7).
For each claim in the petition, Petitioner attaches additional pages of supporting facts and argument, all of which have been considered by this Court and are addressed below. (Petition at 6A-6G; 7A-7H).
V. Discussion
Petitioner alleges the Board's decision to deny him parole is in violation of his plea agreement and is not supported by evidence. (Petition at 6-7). Respondent argues that the petition fails to state a claim for relief because the plea agreement was not violated, there is no due process interest in parole release, and the state courts did not inappropriately apply federal law. Petitioner raises claims of the Board's denial of parole in 2003 and 2004, however Respondent only addresses claims with respect to the 2003 parole denial, and fails to address Petitioner's claims regarding the 2004 parole denial. This Court addresses Petitioner's claims with respect to both the 2003 and 2004 parole denials as they were both raised in the instant petition. Claim 1: The Plea Agreement
Petitioner asserts that he is unconstitutionally being kept in prison in violation of his plea agreement, and, therefore, the Court should order "specific performance" of the plea agreement and immediately release him from custody. (Petition at 6). Petitioner asserts several arguments in support of this theory.
First, Petitioner contends that, "The Board has ignored the plea agreement, the length of time petitioner has served, and has elevated the degree of punishment by continuously denying parole on the commitment offense. This practice of the Board of Prison Terms violates the negotiated plea agreement." (Petition at 6A). Petitioner argues that in violation of the plea agreement, the Board has raised "the degree of punishment of first degree murder with the possibility of parole to first degree murder with no possibility of parole . . ." (Petition at 6A). Respondent argues that the state courts' rejection of Petitioner's habeas claim regarding the alleged plea agreement violation comported with state and federal law. This Court reviews the findings of the state courts under AEDPA's deferential review requirement, asking whether "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." 28 U.S.C. § 2254(d). The state court's factual findings are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
"Plea agreements are contractual in nature and are measured by contract law standards." Brown v. Poole, 337 F.3d 1155; [quoting United States v. De La Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993)]. "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, (1971). Brown dealt with an inmate who argued that the Board of Prison Terms did not abide by the terms of her plea agreement. The petitioner in that case asserted that she understood her agreement to mean that if she did not violate any prison disciplinary rules she would be released in seven and one-half years. Brown, at 3. When the plea agreement was entered, the prosecutor stated: "Now, if you behave yourself at the state prison, as most people do, and I am inclined to believe that you will, you are going to get out in half the time. You get half of that 15 years off, or half of that 17 years off with the imposition of the extra two years, for good time/worktime credits. That's up to you. Do you understand that?" Brown, at 1. The court found that the issue presented was not what the prison terms mean, but whether the terms were part of the plea agreement. The court found that in cases such as this, an inquiring court must focus on the defendant's reasonable beliefs. Id. at 4. Therefore, the Court concluded that since the defendant reasonably believed that the prosecutor had the power to make this type of deal and the judge did not contradict the prosecutor's statement, the terms the prosecutor orally stated were part of the plea agreement. Id.
Here, Petitioner claims that, ". . . Judge Ehrenfreund specifically stated that petitioner would serve sixteen years and eight months if he programmed well and completed treatment." (Petition at 6A). However, contrary to Petitioner's claim, neither the prosecutor nor the judge made a promise or guarantee to Petitioner that he would be released after a certain date. The Court of Appeal found, "Castle was not promised he would be granted parole upon reaching his minimum eligible parole date." (Court of Appeal Denial at 2).
The trial court sentencing transcript indicates that Petitioner plead guilty to first degree murder in exchange for a sentence of 25 years to life with parole eligibility. During the sentencing judge's exchange with Petitioner, the judge clearly stated the terms of the sentence:
Q Do you understand that under this sentence you would be eligible for parole after you had served two thirds of the 25 years; that would appear to be 16 years and eight months. That is, you would be eligible for parole after that time assuming you have served good time with good work time? Do you understand that?
A Yes, sir.
Exhibit 2: Hearing Re Change of Plea at 15. (emphasis added)
Thus, the sentencing judge explained how and when Mr. Castle would become eligible for parole, and did not promise parole would be granted after a certain time, unlike the prosecutor's statement in Brown which indicated defendant would unequivocally be paroled after a certain number of years. Brown at 1. (". . . you are going to get out in half the time.") Petitioner's defense counsel, Mr. Schneidewind, also addressed the sentence and parole parameters on the record:
Q Who do you believe will decide what the sentence will be?
A A judge.
Mr. Schneidewind: Perhaps for the record we should clarify that. Under this particular statute, it is true that the judge will impose the sentence, but the actual sentence and set term will be handled by the parole board as I understand it. This court is bound by the 25 to life sentence.
The court: Yes.
Q Do you understand that Mr. Castle?
A Yes, sir.
Respondent's Exhibit 2: Hearing Re Change of Plea at 18 (emphasis added).
Thus, the discussions with Petitioner regarding sentencing and parole did not give rise to any reasonable belief that he would be paroled after a time certain. Petitioner is serving a 25 years to life sentence. Petitioner was not promised that he would be released early if he followed certain guidelines. Petitioner was promised that he would become eligible for parole after 16 years. This simply means that he would begin being reviewed by the Board to determine his suitability for parole after 16 years in prison with good time. Thus, there is no merit to Petitioner's argument that his plea agreement is being violated by the parole board because he has not yet been granted parole. Therefore, the Court of Appeal's denial of this claim based on its finding that Petitioner was not promised he would be granted parole, was not an unreasonable or contrary application of clearly established federal law, nor did it result in an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2245(d). Accordingly, this Court recommends Petitioner's claim be denied in this regard.
Throughout his petition, Petitioner argues that he is entitled to an evidentiary hearing in order to further develop the record regarding his expectations of the plea agreement. On August 3, 2005 Petitioner made a motion for leave to conduct discovery including serving the sentencing judge with interrogatories, arguing that discovery was necessary in order to inform this Court of the terms of the plea agreement and the circumstances surrounding the entering of the plea. (Docket Number 17). This Court denied the motion, finding good cause did not exist to allow the discovery because Petitioner did not provide specific reasons for why the discovery was necessary or why the information would entitle him to relief. Rule 6(a), 28 U.S.C. following § 2254. Here, Petitioner likewise requests an evidentiary hearing "to ascertain the agreements made and what the Petitioner believed the agreement meant to him. Also important here is what the Sentencing Judge and Petitioner's counsel believed at the time what [sic] the agreement meant." (Petitioner's PA in Support of Traverse at 16-17).
In support of his request, Petitioner cites Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997). Jones held that "[a] habeas petitioner is entitled to an evidentiary hearing as a matter of right on a claim where the facts are disputed if two conditions are met: (1) the petitioner's allegations would, if proved, entitle him to relief; and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. [citing Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992)]. Jones at 1010. See also Earp v. Stokes, 423 F.3d 1024 (9th Cir. 2005) (Holding that a defendant is entitled to an evidentiary hearing if he can show that: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing). Here, the facts regarding what occurred at the sentencing are not disputed. Petitioner disputes what his subjective belief regarding the plea agreement was. Even if Petitioner's subjective belief were discoverable, as discussed above, the relevant inquiry is with respect to a defendant's reasonable belief, not what his actual belief might have been. The record before the court clearly reflects the sentencing judge's statements and those of counsel. There are no disputed facts such that an evidentiary hearing would uncover further detail or resolve any ambiguity in the record with respect to Petitioner's or their beliefs at the sentencing. There is no indication there was not a full and fair hearing to adequately develop the facts or that any new evidence exits. Petitioner does not provide any specific reason indicating the trier of fact has not reliably found the relevant facts. The state court found Petitioner was not promised he would be granted parole, basing that finding on the sentencing hearing transcript. (Court of Appeal Denial at 2). Therefore, the Court finds Petitioner has not demonstrated good cause for the discovery hearing and recommends his request in this regard be denied.
Second, Petitioner contends that because the 2003 Board did not factor into its decision a statement from the sentencing judge, that statement was not considered by the Board as required by statute, and, therefore, the Board violated the plea agreement. Respondent does not address this argument.
Petitioner refers to the Statement by Trial Judge under 1203.01 Penal Code (hereafter, "1203.01 statement").
Petitioner contends, "[i]n the January 31, 2003 decision by the Board, and all other prior hearings, the Board failed to consider and include on the record the letter from the sentencing judge, in the commitment offense, urging parole after petitioner has completed psychiatric treatment, treatment for drug addiction, treatment for alcoholism, training in a trade, serve a long parole period and serve not the "minimum" or the "maximum" term but a "long" term. In other words, the "medium" term." (Petition at 6A).
The last reasoned state court decision addressing Petitioner's breach of plea agreement claim with respect to the sentencing judge's statement is the California Court of Appeal order denying his petition for writ of habeas corpus. In that order, the court relied on the California Supreme Court's standards from In re Rosenkrantz, 29 Cal.4th 616 (Cal. 2002), to reject Petitioner's claim with respect to the alleged breach of the original plea agreement. The Court of Appeal found that in accordance with Rosenkrantz, the Board's decision to deny parole was supported by the "some evidence" required to comport with due process. ("[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation.") (Court of Appeal Denial at 2, citing Rosenkrantz at 658).
The "some evidence" the Court of Appeal found to sufficiently support the Board's decision is: the Board did consider the sentencing judge's statement, and that the statement was only one factor among many the Board may consider to determine a prisoner's suitability for parole under California Code of Regulations section 2281. (Court of Appeal Denial at 2).
The findings of the state court are presumed correct unless rebutted by clear and convincing evidence. 18 U.S.C. 2254(e)(1). Here, Petitioner argues that the Board did not consider the 1203.01 statement. California Penal Code section 3046 requires that orders granting or denying parole state that recommendations submitted by judges pursuant to Penal Code section 1203.01 have been considered:
The Board of Prison Terms shall, in considering a parole for a prisoner, consider all statements and recommendations which may have been submitted by the judge, district attorney, and sheriff, pursuant to Section 1203.01, or in response to notices given under Section 3042, and recommendations of other persons interested in the granting or denying of the parole. The board shall enter on its order granting or denying parole to these prisoners, the fact that the statements and recommendations have been considered by it.
Cal.Penal Code § 3046(c) (emphasis added).
The Board is required by California law to consider the 1203.01 statements of the sentencing judge and to state on its order that it did so. The Court of Appeal found, "[t]he record shows the Board considered the sentencing court's [1203.01 statement], indicating Castle was in need of psychiatric, drug and alcohol treatment, Castle should serve "a long term" and receive "a long period of parole." (Court of Appeal Denial at 2). A thorough review of the 2003 Board's decision in the parole hearing transcript reflects no explicit indication that the Board considered the 1203.01 statement. However, at the hearing, the Board referenced the existence of a 1203.01 statement (Respondent's Exhibit 4: Parole Consideration Hearing Transcript at 6), and subsequently in the decision portion of the hearing the Board indicated that it had ". . . reviewed all information received from the public . . ." (Respondent's Exhibit 4: Parole Consideration Hearing Transcript at 46).
Petitioner admits that the 2003 Board mentioned a 1203.01 statement. Petitioner also argues that the 1999 Board hearing, which is not at issue in this Petition, did not mention the statement. (Petition at 6A).
Although not specifically stated in the Board's decision as required by California state law, the parole hearing record confirms the findings of the Court of Appeal, in that the Board apparently at least considered the sentencing judge's 1203.01 statement. Although the Board does not explicitly indicate the 1203.01 statement was considered, it can be inferred from the Board's statement that it, "reviewed all information received from the public" that the Board reviewed all of the information before it. During the hearing, the Board ensured the 1203.01 statement was in the record, present at the hearing, and possessed by both attorneys. (Respondent's Exhibit 4: Parole Consideration Hearing Transcript at 6). The Board additionally stated, "[w]e have reviewed your files and prior transcripts." (Respondent's Exhibit 4: Parole Consideration Hearing Transcript at 3). Thus, the Court of Appeal's finding that the record shows the Board considered the statement is not an unreasonable determination of the facts based on the record. 28 U.S.C. § 2254(d)(2). Although Petitioner's argument that the Board did not explicitly set forth in the order or the hearing that it considered the statement is correct, it does not rise to the level of clear and convincing evidence required to find the state court made an unreasonable determination of fact when it found the Board at least "considered" the 1203.01 statement. 28 U.S.C. § 2254(e).
Regardless, even if the Board did not sufficiently mention and/or consider the statement, it does not demonstrate the Board is not abiding by the plea agreement; it merely demonstrates the Board is in violation of the state statutory requirements. Petitioner claims that the Board violated provisions of California Penal Code section 3046(c) and applicable parole regulations in violation of his rights. However, claims based on state law are not cognizable in a federal habeas petition. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (observing that "it is not the province of the a federal habeas court to reexamine state-court determinations on state-law questions."); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (observing that "federal habeas corpus relief does not lie for errors of state law."). Rather, in conducting habeas review, a federal court is limited to deciding whether a conviction violates the Constitution, laws, or treaties of the United States. Estelle, 502 U.S. at 68. Petitioner's claims that the Board did not comply with California state law cannot form the basis for federal habeas relief, and the Court therefore recommends the claim be denied in that regard.
Petitioner asks for "specific performance" of his plea agreement. Because the record does not indicate that Petitioner's plea agreement or Petitioner's constitutional rights were violated, this Court does not decide whether specific performance of the plea agreement is a necessary or appropriate remedy. Even if the Board were in constitutional violation of the terms of the plea agreement, specific performance is not necessarily the appropriate or only remedy at law. A more likely remedy would be that the Board conduct a subsequent parole hearing issuing an order that conforms to the statutory requirement, explicitly setting forth the fact that the 1203.01 statement has been considered by it. Regardless, as discussed below with respect to Petitioner's claim 2, the Board complied with the "some evidence" standard required by due process in finding Petitioner not eligible for parole. Therefore any alleged breach of the plea agreement would be remedied by the Board's sufficiently constitutional determination that Petitioner is not yet deserving of parole. Accordingly, this Court recommends the claim also be denied in this regard.
Claim 2: Denials of Parole
A. Liberty Interest In Parole
Petitioner claims that the Board violated his due process rights by finding him unsuitable for parole, thus depriving him of a liberty interest. (Petition at 7). First, the Court must address Respondent's argument that due process principles are inapplicable here because Petitioner does not possess a protected liberty interest in parole under California law. (Resp. Points Auth. at 7-11). The Due Process Clause provides, "[No] state [shall] deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. To trigger due process protections, a plaintiff must establish that he has a "protectible right" or a "legitimate claim of entitlement" as opposed to a mere hope or expectation. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 13 (1978). While there is no right to parole inherent in the Fourteenth Amendment, the Supreme Court has concluded that mandatory language in a state's parole scheme can create a protected liberty interest in conditional release on parole. Greenholtz, 442 U.S. at 7; Board of Pardons v. Allen, 482 U.S. 369, 381 (1987).
The Ninth Circuit has found that California prisoners possess a protected liberty interest in conditional release on parole. In McQuillion, the state argued that the prisoner had no protectible interest in parole because the Supreme Court's decision in Sandin "eliminated the `mandatory language' approach of Greenholtz and Allen." Id. at 902. The Ninth Circuit rejected this argument, concluding instead that under Greenholz and Allen the petitioner, a California prisoner, possessed a protected liberty interest in parole in light of the mandatory language used in the state's parole statute. Id. at 903. The Court further concluded that the state's reading of Sandin was too broad because Sandin was limited to cases involving internal prison disciplinary regulations and did not apply to state parole determinations. Id. at 903. Subsequently, in Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003), the Ninth Circuit reaffirmed its holding that California prisoners have a constitutionally protected liberty interest in parole.
However, after the Ninth Circuit decided McQuillion and Biggs, the California Supreme Court definitively interpreted the state's parole statute, concluding that the language in the statute is not mandatory and that there is accordingly no right to parole in California. In re Dannenberg, 34 Cal.4th 1061, 1087 (Cal. 2005), cert. denied, 74 USLW 3204 (U.S. Oct. 3, 2005) (No. 04-10299). As a general matter, a federal court will defer to a state supreme court's own interpretation of a state statute. See Gurley v. Rhoden, 421 U.S. 200, 208 (1975) ("[A] State's highest court is the final judicial arbiter of the meaning of state statutes."). The Ninth Circuit has not been called to reconsider its holdings in McQuillion or Biggs following the California Supreme Court's decision in Dannenberg, leaving the district courts of this Circuit without any clear guidance as to whether these cases remain binding precedent.
As Respondent observes, following Dannenberg, at least one district court has determined that California prisoners do not possess a protected liberty interest in parole. See Sass v. Cal. Bd. of Prison Terms, No. 01-0835, 2005 WL 1406100 (E.D. Cal. June 15, 2005) (England, J.) (defering to California Supreme Court's Dannenberg decision in finding California prisoner did not possess liberty interest in parole); see also Thomas v. California Board of Prison Terms, No. 1:05CV955A, 2005 WL 2397060 (E.D. Cal. Sept. 27, 2005) (Oneill, M.J.) (same); Trevino v. Mendoza-Powers, No. CVF03-67380WW, 2005 WL 2436471 (E.D. Cal. Oct. 2, 2005) (Snyder, M.J.) (same). On the other hand, at least one district court has concluded that even after Dannenberg, California prisoners do possess a federal liberty interest in parole. Hudson v. Kane, No. C 04-02232SI, 2005 WL 2035590 (N.D. Cal. Aug. 23, 2005) (Illston, J.); see also DeVries v. Schwarzenegger, No. Civ. S-05-235, 2005 WL 2175875 (E.D. Cal. Sept. 8, 2005) (Hollows, M.J.) Respondent argues that because California law does not mandate parole release, under Greenholtz and Allen, it does not create a federal liberty interest. (Resp. Points Auth. at 10).
This Court however does not need to reach a decision regarding whether Petitioner possesses a liberty interest in parole because, even if Petitioner has a federal liberty interest in parole, Petitioner has failed to demonstrate, and the record before the court does not show, that his due process rights were violated by the Boards' decisions to deny him parole in 2003 and in 2004.
B. The Denials of Parole Did Not Violate Due Process
Petitioner has served twenty-four years of his twenty-five-to-life sentence. Petitioner has been repeatedly denied parole since he first because eligible in 1996. The instant petition challenges the most recent denials of parole, in 2003 and in 2004. Respondent addresses the 2003 denial but fails to address Petitioner's claims regarding the 2004 denial.
In 2003, the Board found Petitioner was not suitable for parole based on several factors, including: the offense was carried out in an especially cruel and callous manner that demonstrates an exceptionally callous disregard for human suffering, the motive for the crime was inexplicable and very trivial in relation to the offense, the prisoner has a record of violence and assaultive behavior and an escalating pattern of criminal conduct and violence and has failed to profit from society's previous attempts to correct his criminality, the psychiatric report is not totally supportive of release, and oppositions to his release including the District Attorney's office, the Police Department and the victim's sister. (Respondent's Exhibit 4, In the matter of the life term parole consideration hearing of Robert Castle at 46-48, January 31, 2003 Board Hearing Transcript).
In 2004, the Board again found Petitioner not suitable for parole based on several factors, including: the commitment offense shows a lack of regard for the life and suffering of another, the crime was carried out in a cruel fashion, the motive for the crime was trivial, his prior criminal history, an unstable social history, insufficient participation in self-help programs, the District Attorney's office and the Police Department oppose parole, and an unclear psychiatric report. (Petitioner's Lodgement Number 1, In the matter of the life term parole consideration hearing of Robert Castle at 68-72, June 14, 2004 Board Hearing Transcript).
Petitioner first claims that his due process rights were violated because there was insufficient evidence in the record to support the Boards' decisions. (Petition at 7; Pet. Points Auth. at 10-16). In Superintendent v. Hill, 472 U.S. 445 (1985), the Supreme Court held that a decision by prison officials to revoke good time credits, also a protected liberty interest, must be supported by "some evidence." Id. at 447, 454. The Ninth Circuit and the California Supreme Court have both applied the evidentiary standard set forth in Hill to parole determinations, reasoning that parole decisions and revocation of good time credits are similar in that they both affect the duration of the term of incarceration. See Biggs, 334 F.3d at 915; In re Rosenkrantz, 29 Cal.4th 616, 658 (Cal. 2002); Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987). Under the "some evidence" test, a reviewing court must uphold the state's administrative decision as long as it has "some basis in fact." Hill, 472 U.S. at 456. This standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of evidence. Instead, the relevant question is whether there is any evidence in the record that could support the [prison administrator's] conclusion." Id. at 455-456 (emphasis added).
Under California law, parole determinations are to be made based on "[a]ll relevant, reliable information available." 15 Cal. Code Regs. § 2402(b). Such information includes the prisoner's social history; past and present mental state; past criminal history; the base and other commitment offenses; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. 15 Cal. Code Regs. § 2402(b). Factors tending to indicate that a prisoner is suitable for parole include lack of a juvenile record, stable social history, signs of remorse, lack of violent history, advanced age, realistic plans for release, presence of marketable job skills, and good conduct while institutionalized. 15 Cal. Code Regs. §§ 2402(c), (d). Factors tending to demonstrate unsuitability for parole include a previous record for violent behavior, unstable social history, history of severe mental problems, and misconduct while institutionalized. Further, a prisoner may be found unsuitable if the prisoner "committed the offense in an especially heinous, atrocious or cruel manner," for instance, where the victim was abused, defiled or mutilated during or after the offense; the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering; or the motive for the crime is inexplicable or very trivial in relation to the offense. 15 Cal. Code Regs. § 2402(c)(1).
Here, the 2003 and 2004 parole Boards each gave factors in support of its conclusion that Petitioner was unsuitable for parole. The 2003 Board found that the nature of the commitment offense was carried out in an especially cruel and callous manner that demonstrates an exceptionally callous disregard for human suffering and that the motive for the crime was inexplicable and very trivial in relation to the offense. The Board noted that the incident was so vicious that the inmate even stabbed his own partner several times. (2003 Board decision at 1). Similarly, the 2004 Board cited the commitment offense as the large portion of the reason for denial. The 2004 Board explained:
It was clearly a crime that shows a lack of regard for the life and suffering of another. Mr. Boers, Edwin Steven Boers, was chosen as a victim because he was especially vulnerable. The inmate and his crime partners decided that a homosexual would be more vulnerable, would be easier to victimize than someone else. And so they went to an area of Balboa Park known to be frequented by homosexuals. Mr. Castle actually posed to some degree as a homosexual when he encountered Mr. Boers and agreed to go to his home with Mr. Boers. Told his crime partners who were also there in the park that he was going. They followed him to the home and then after they arrived at Mr. Boers' residence, along with Mr. Boers' partner, the inmate ultimately stabbed Mr. Boers after he and his crime partners robbed him of some $20. And apparently, according to Mr. Castle, even today, that Mr. Boers was not resisting, but he was yelling. And to stop him from yelling, keep him quiet, or to stop him from drawing attention to them, Mr. Castle stabbed him to death, stabbing him three times. He left him in the driveway to die.
. . .
And the motive for the crime was so trivial. This young man lost his life over 20-some dollars. And not only was the money trivial, but the reason behind wanting the money, so that Mr. Castle and his friends could continue to party.
2004 Board Decision at 1-2.
Both Board decisions were based in part on the nature of the commitment offense. Both Board decisions also cited petitioner's prior criminal record as a factor for denial. The 2003 Board found Petitioner has a record of violence and assaultive behavior and an escalating pattern of criminal conduct and violence, and the 2004 Board found his prior criminal history and unstable social history were factors that supported denial of parole.
The Boards both recognized that Petitioner had made positive strides during his incarceration. The 2003 Board commended him "for remaining disciplinary free, for completing the Dry Cleaning program in 2000 and also the Life Skills Development program in 2000." (2003 Board Decision at 3). The 2004 Board similarly commended Petitioner:
. . . [H]e's not had a 115 since 1989, and that was the last of only two. And that's really quite remarkable, Mr. Castle, in 22 plus years of incarceration. I say I commend you. That word is really not strong enough, because that's very exemplary performance. You're to be commended for the fact that you've not had a 128 since 1993. That was the last of four. That he acquired his high school diploma, his GED. He has completed dry cleaning, graphic arts, and I did note that there was considerable time spent in masonry. He also received laudatory chronos in dry cleaning. He's to be commended for his participation in CrimAnon, various subjects, in AA, Emergency Preparedness courses, again various subjects in that, and previously in Eagle and Lifeskills. He's also to be commended for his exceptional work reports while serving in metal fab as a punch press operator, which he is certified in, and as a clerk. And he has not only received exceptional work reports, but laudatory chronos for his work.
2004 Board Decision at 6-7.
The 2004 Board noted that Petitioner had also earned the support of family and friends while in prison and developed realistic and appropriate parole plans. ( Id. at 3-4). Ultimately, however, both Boards found that these positive steps were outweighed by other negative factors. As the 2003 Board found,
"[t]he prisoner has a record of violence an assaultive behavior. He has an escalating pattern of criminal conduct and violence. He has failed to profit from society's previous attempts to correct his criminality. Such attempts include juvenile probation, juvenile camp, adult probation and county jail. He has an unstable social history which includes marijuana and cocaine use at age 14, he dropped out of high school and reports that he used alcohol to excess during these times.
2003 Board Decision at 2.
The 2004 Board made similar findings with respect to Petitioner's social and criminal history. (2004 Board Decision at 2-3). Regarding Petitioner's psychological status, neither Board was convinced his status supported release. The 2003 Board found that, "[t]he psychiatric report dated July 2001, prepared by Madeline Daniels, Ph.D., we find is not totally supportive of release. On page three, the bottom, last sentence, she says: `Risk of violence is considered to be less than average if Mr. Castle is released from the community.' We interpret this to mean that it is lower than average, that he would be more likely than the average person to become involved in community violence." (2003 Board Decision at 2-3). The 2004 Board likewise found that the psychological reports did not conclusively support release, finding that both of the 2001 reports were not thorough enough, and stated with respect to the 1995 report, "what is troubling is the fact that a prior doctor had diagnosed Mr. Castle with Anti-Social Personality Disorder, and there's never been-after that diagnosis in 1995 there never seemed to be any further mention of it telling us whether it was gone, whether it resolved, or in partial remission. So we are asking for a new psychiatric report to be performed prior to the next hearing and have written up the appropriate documentation to request that." (2004 Board Decision).
The Court notes that Petitioner disputes this conclusion drawn by the Board, asserting that the Board's interpretation is "arbitrary and capricious violating petitioner's due process right to a fair and impartial hearing guaranteed under the United States Constitution Fourteenth Amendment." (Petition at 6C). Petitioner cites favorable 1995 and 1999 psychiatric reports, contending that the Board's "interpretation of these known facts violates due process of law to a fair and impartial hearing." ( Id.) However, Petitioner fails to articulate a due process claim based on this argument.
In reviewing the Boards' decisions, the California courts applied the "some evidence" test and concluded that the Boards' decisions were adequately supported by the record. In reviewing the 2003 denial, the Court of Appeal noted that the "some evidence" the Board relied upon included "the psychological factors of the life prisoner related to the offense," and found that the "circumstances of the crime, Castle's criminal record and unstable social history support the Board's decision." (Respondent's Exhibit 6, Court of Appeal denial at 2). In reviewing the 2004 denial, the Superior Court also applied the "some evidence" test and pointed to specific evidence supporting the Board's conclusion that Petitioner presented a danger to the community, including: the egregious nature of the crime, Petitioner's criminal history, his unstable social history, the Board's recommendation that Petitioner continue to participate in self-help, and his failure to demonstrate remorse for the crime. (Petitioner's Exhibit A, Superior Court Denial at 3-4).
In deciding Petitioner's federal habeas petition, it is not the province of this Court to re-weigh the evidence or substitute its own judgment for that of the state parole authority. Rather, the only question before this Court is whether there is any reliable evidence in the record to support the denial of parole. See Hill, 472 U.S. at 455-456. In challenging the Boards' decisions, Petitioner first points to evidence in the record suggesting that he is suitable for parole. Petitioner lodged the "parole suitability package" apparently presented to the Boards for consideration, which presents evidence tending to indicate suitability for parole including, evidence that Petitioner has no juvenile record, a stable social history, participation in self-help, demonstrated signs of remorse, that alcohol and substance abuse at the time of the crime were a significant factor in motivation for the crime, that Petitioner has a lack of violent criminal history, that Petitioner's age of 42 compared to his age at the time of the crime, 19, reduces the probability of recidivism, that Petitioner has stable future plans for after his release, that he has remained discipline-free for 14 years, and that Petitioner has demonstrated favorable work history, education and training while in prison. (Petitioner's Lodgement Number 2, A). While Petitioner's evidence is supported by the record, the record also contains some evidence that he is not yet suitable for parole, albeit based significantly on his criminal and social history and the egregious nature of the commitment offense. Thus, although limited, there is some evidence, as discussed above, in the record to support the Boards' conclusions.
Petitioner also takes issue with the Boards' determination that he has failed to show remorse for his criminal conduct. (Petition at 7C). He points to a mental health evaluation by a psychologist in which he expressed shame and grief for his actions. Regardless of whether there is such evidence in the record, there is also evidence to support the Board's conclusion. The 2004 Board cited concerns about Petitioner's feelings of remorse because he appeared robotic and detached at the hearing:
One of our issues, Mr. Castle, was pointed out by the District Attorney and felt by the panel as well. And that is that, as we discussed in our deliberations, you're somewhat robotic. We're not asking you to come in here and cry. We're not asking you to — You know, that's not a qualifier for a demonstration of remorse. But because you are so robotic and almost unemotional [sic] detached from this, it's very difficult to understand what your real level of insight into the crime is. We're not sure what we're seeing here, if you are writing everything down and you're just dealing with this in a clinical fashion. If so, then you haven't really gotten into the core of the problem. So I hope you'll think about that, read the transcript, and maybe you'll get a sense of what we were feeling today.2004 Board Decision at 7.
As noted by the Superior Court in its review, "[a] prisoner's demonstration that he understands the nature and magnitude of the offense is an indicator of genuine remorse and is a factor tending to show suitability for parole. (15 California Code of Regulations, 2402(d)(3).) The Board's assessment of Petitioner's demeanor at the hearing and his insight into the commitment offense is entitled to great weight and their finding in this regard was within their discretion on this record." Thus, there is some evidence in the record to support the 2004 Board's assessment.
In a similar vein, Petitioner asserts that "there is no factual support in the record to suggest that Petitioner would pose an unreasonable risk of danger to society or a threat to public safely if released from prison." (Petition at 7B). This claim is not borne out by the record. Both Boards specifically commended Petitioner for making positive strides while incarcerated, including improving his education and vocational skills, participating in self-help and therapy programs, and receiving laudatory reports as well as favorable psychological, work, and counseling evaluations. Nonetheless, the Board concluded that these positive factors were outweighed by other evidence demonstrating unsuitability for parole. Specifically, the 2004 Board found that:
[t]he inmate needs further participation in self-help. Not only to further delve into the causative factors for his participation in this life crime, but to develop an appropriate level of insight, which includes remorse for what he has done, the crime that he has committed. And until further progress is made, he continues to remain unpredictable and to be a potential threat to the community.
(2004 Board Decision at 5-6).
Petitioner is essentially asking this Court to re-weigh the evidence and substitute its judgment for that of the Board, which the Court is not permitted to do. See Hill, 472 U.S. at 465. As the California courts concluded, the factors relied on by the Board constitute "some evidence" to support the denial of parole. See Biggs, 334 F.3d at 916 (upholding denial of parole based on gravity of the prisoner's offense and prior criminal history, despite fact that prisoner was a "model inmate" during his incarceration); Morales v. California Dept. of Corr., 16 F.3d 1001, 1005 (9th Cir. 1994), overruled on other grounds, 514 U.S. 499 (1995) (upholding denial of parole based on prisoner's criminal history, cruel nature of offense, and need for further psychiatric treatment); Jancsek, 833 F.2d at 1390 (affirming denial of parole based on callous nature of the offense). Petitioner has failed to demonstrate that the state courts' application of Hill was unreasonable, so as to warrant federal habeas relief.
Petitioner also contends that the Boards improperly denied parole based on unchanging factors, such as the nature of the offense and his prior criminal history. (Petition at 7E; Traverse PA at 10-12). Petitioner is correct that the Ninth Circuit has warned against continued reliance on unchanging factors to deny parole, which can turn an indeterminate sentence like Petitioner's into an effective life sentence without the possibility of parole. See Biggs, 334 F.3d at 916. As the Ninth Circuit observed, denying parole based solely on factors beyond the prisoner's control "runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." Id. at 917. Here, the Superior Court, in reviewing the 2004 Board denial noted, "[w]hile continued reliance on such an unchanging factor may indeed raise due process concerns at some time in the future if Petitioner is able to maintain his commendable prison record, the record supports the Board's determination that Petitioner has not yet reached that point." (Petitioner's Exhibit A, Superior Court denial of 2004 Board).
Regardless, the Boards did not rely solely on unchanging factors to deny parole. Although both Boards pointed to the nature of the offense and Petitioner's prior criminal history to support their decision, the 2004 Board also specifically relied the potentially changeable factors of Petitioner's lack of insight and remorse, and found that Petitioner could make further progress in this regard by further participation in self-help. (2004 Decision at 6-7). Although not as explicit, the 2003 Board also recommended Petitioner continue to participate in self-help. (2003 Decision at 3). The Boards' decisions thus do not trigger the due process concerns raised by the Ninth Circuit in Biggs. For these reasons, the Court recommends that Petitioner's due process claim be denied in this regard.
Petitioner's remaining arguments are that the Boards failed to follow California law in finding him unsuitable for parole. (Petition at 6C; 7E). Specifically, Petitioner contends that the Board was required by state law to set a parole release date that is proportionate to his commitment offense and in relation to other similar offenses. In support of this argument, he cites In re Ramirez, a case decided by the California Court of Appeal. (Petition at 6C; 7E). (citing In re Ramirez, 94 Cal.App.4th 549 (Cal.Ct.App. 2001)). Petitioner does not cite, nor did this Court's research reveal, any clearly established federal law as decided by the U.S. Supreme Court that would require a parole authority to engage in a comparative proportionality analysis when considering whether to grant parole. See 28 U.S.C. § 2254(d). Similarly, Petitioner claims that the Boards violated provisions of the California Penal Code (sections 1170.2 and 2937) and applicable parole regulations in reaching his decision. (Petition at 6C; 7E). Petitioner also alleges due process claims regarding late parole hearings. (Supplemental Traverse at 6-7). Petitioner states that all of his parole consideration hearings have been late, and specifically points to hearings in 1999, 2003, 2004 and 2005, that he alleges were each held several months late. Petitioner states, [t]hese late hearings without compensation for the late hearings is a violation of due process of law and Petitioner's liberty interest to parole." Claims based on state law are not cognizable in a federal habeas petition. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (observing that "it is not the province of the a federal habeas court to reexamine state-court determinations on state-law questions."); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (observing that "federal habeas corpus relief does not lie for errors of state law."). Rather, in conducting habeas review, a federal court is limited to deciding whether a conviction violates the Constitution, laws, or treaties of the United States. Estelle, 502 U.S. at 68. Petitioner's state law claims cannot form the basis for habeas relief, and the Court therefore recommends that these claims be denied.
The Court notes that the California Supreme Court recently disapproved of the proportionality analysis adopted by the appellate court in Ramirez. See Dannenberg, 34 Cal.4th at 1083-84.
Conclusion
For all of the above reasons, the undersigned Magistrate Judge RECOMMENDS that the Petition for Writ of Habeas Corpus be DENIED. This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1).
IT IS ORDERED that no later than January 30, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than February 10, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.