ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

CORMAC J. CARNEY, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

This Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on February 13, 2019. The Petition challenges a 2017 decision of a panel of the California Board of Parole Hearings ("Board"). Respondent filed an Answer on April 10, 2019. Petitioner filed a Reply on May 3, 2019.

BACKGROUND

In 1985, a jury found Petitioner guilty of robbery and kidnapping for robbery (Petition, p. 2; see Petition, Exhibit B, ECF Dkt. No. 1, p. 47). Petitioner was twenty years old when he committed these offenses (Petitioner, attachment, p. 4). The jury was "unable to determine" the allegation that Petitioner had used a knife in the commission of the offenses, and counsel later stipulated that this verdict constituted a finding that the allegation was "not true" (Petition, attachment, p. 4; Petition, Exhibit B, ECF Dkt. No. 1, pp. 47-48). The court found true the allegation that Petitioner had served a prior prison term within the meaning of California Penal Code section 667.5(b) (Petition, Exhibit B, ECF Dkt. No. 1, p. 48). Petitioner received a sentence of eight years to life (Respondent's Lodgment 2, p. 0012). The California Court of Appeal affirmed on August 26, 1986 (Respondent's Lodgment 1).

On April 5, 2017, Petitioner appeared before the Board for a twelfth parole consideration hearing (Respondent's Lodgment 2, p. 0012). The Board denied parole (Respondent's Lodgment 2, pp. 0117-27).

Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a twelve-page reasoned order (Respondent's Lodgments 3, 6). Petitioner then filed habeas corpus petitions in the California Court of Appeal and the California Supreme Court, which those courts denied summarily (Respondent's Lodgments 4, 5, 7, 8).

FACTS

According to the Court of Appeal's summary of the evidence, on November 15, 1983, Petitioner and a companion accosted a man on a Los Angeles Street (Respondent's Lodgment 1, p. 0004). Petitioner allegedly pulled out a knife and told the victim "Give me all you got or I will dip [hurt] you" (id.). Petitioner allegedly twisted the victim's arm behind his back and forced the victim to walk down an alley and into an isolated passageway, a total distance of approximately 110 to 120 feet (id., pp. 0004-05). Petitioner's companion allegedly took the victim's watch and approximately $14 in cash (id., p. 0005). Petitioner allegedly said something to the victim concerning Petitioner's sister that the victim did not understand, as the victim did not know Petitioner or Petitioner's sister (id.).

At the 2017 parole hearing, Petitioner said he accosted the victim because he allegedly believed the victim had been "messing" with Petitioner's sister (Respondent's Lodgment 2, p. 0036). Petitioner admitted pulling a knife, grabbing the victim and taking the victim into an alley (id., pp. 0036, 0039). Petitioner admitted walking the victim into a parking stall away from the street and admitted that Petitioner's companion took the victim's money and watch (id., p. 0036-37). Petitioner said he was "sure [the victim] was terrorized" (id., p. 0041). Petitioner admitted his crime was "definitely a violent crime" but claimed he was not a violent person (id., P. 0097).

As of the date of the hearing, Petitioner had received thirty-six prison rules violation reports, including two reports in 2015 (id., pp. 0056-57). The 2015 rules violation reports were for possession of a cell phone and being "out of bound[s]" (id., p. 0057). According to a 2017 "Comprehensive Risk Assessment" performed by a forensic psychologist, Petitioner's rules violations committed in 1983-2012 included: holding a person as a hostage/kidnapping; stimulants and sedative; failure to return/escape; possession of marijuana; contraband; failure to report; illegal wiring; giving false information; creating a situation which resulted in inmate injury; several charges of disrespect towards staff; two charges of unauthorized use of a phone; disrespect to staff/sexual misconduct; unauthorized areas/misuse of a phone; falsification of a medical pass; belligerence to staff; disobeying a direct order; overfamiliarity with staff; conspiracy to traffic narcotics; two charges of behavior leading to violence; sexual behavior; overfamiliarization/stalking; possession of a cell phone; delaying a peace officer; and introduction of dangerous contraband — possession of a cell phone (Petition, Exhibit E, ECF Dkt. No. 1-1, p. 54). Petitioner also had received approximately eighteen counseling chronos, the last in 2014 for disrespect toward staff and argumentativeness (id.).

Petitioner told the Board that he had possessed a cell phone in 2015 and in 2012 in order to call his mother (Respondent's Lodgment 2, p. 0057). However, Petitioner told the forensic psychologist that he used the cell phone he possessed in 2015 to call government offices in Sacramento to make complaints (Petition, Exhibit E, ECF Dkt. No. 1-1, p. 59).

Psychologists' assessments in 2017 and 2015 ranked Petitioner as a posing a "moderate" risk of future violence if released (Petition, Exhibit E, ECF Dkt. No. 1-1, pp. 50, 61; Respondent's Lodgment, p. 0085). The 2017 report reflected a diagnosis of Antisocial Personality Disorder based on Petitioner's "pervasive pattern of disregard for and violation of the rights of others. . (Petition, Exhibit E, ECF Dkt. No. 1-1, pp. 53-54, 57). Petitioner had refused to be interviewed by a psychologist in 2010 (Respondent's Lodgment 2, p. 0085-86).1

Petitioner received mental health treatment in 2005 after he reported auditory hallucinations directing him to hurt others (id., p. 0087). At the parole hearing, however, Petitioner denied having heard voices (id., pp. 0088-89). In attempted explanation of his prior report of having heard voices directing him to hurt others, Petitioner said he would not deny the conclusion that he then had been manipulating the situation in order to avoid a scheduled relocation (id., p. 0088-89).

In explaining its decision to deny parole, the Board acknowledged that Petitioner had been a "youthful offender," and the Board stated that it had taken into account the provisions of the California Penal Code requiring the Board to give "great weight" to the diminished capacity of juveniles as compared to adults (id., p. 0118). The Board acknowledged that Petitioner had shown signs of remorse and that Petitioner's age (54) reduced the probability of recidivism (id., p. 0118). The Board noted Petitioner's "realistic plans for release" and the absence of serious rules violations for the past one and a half years (id., p. 0119).

However, the Board stated that other factors indicated that Petitioner would pose an unreasonable threat to public safety if released (id., pp. 0119-21). These factors included the nature of the commitment offense, Petitioner's unstable social history, his criminal history and his prison disciplinary history (id.).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The evidence allegedly did not show Petitioner was a threat to public safety; the Board assertedly failed to consider and give appropriate weight to favorable factors, including Petitioner's youth at the time of the offense; the Board allegedly failed to follow state law concerning assertedly mandated terms and the use of juvenile matrices; and

2. Petitioner's continued incarceration resulting from the Board's parole denial allegedly constitutes cruel and unusual punishment in violation of the Eighth Amendment.

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), 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." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner 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." Id. at 103.

In applying these standards, the Court ordinarily looks to the last reasoned state court decision. See Delqadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, "[a] habeas court must determine what arguments or theories . . 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." Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en Banc).

DISCUSSION

I. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Board's Decision Does Not Merit Federal Habeas Relief.

Petitioner contends the evidence did not support the Board's decision. Petitioner argues that the evidence failed to show Petitioner was a threat to public safety. Petitioner also argues that the Board failed properly to weigh evidence favorable to Petitioner, such as the jury's finding with respect to the knife allegation, Petitioner's allegedly positive programming, the allegedly non-violent nature of Petitioner's criminal and disciplinary history and Petitioner's youth at the time of the commitment offenses.

"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) ("Greenholtz"). In some instances, however, state statutes may create liberty interests in parole release entitled to protection under the federal Due Process Clause. See Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Greenholtz, 442 U.S. at 12. The Ninth Circuit has held that California's statutory provisions governing parole create such a liberty interest. See Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010) (en banc), disapproved on other grounds, Swarthout v. Cooke, 562 U.S. 216 (2011).2

"In the context of parole, . . . the procedures required are minimal." Swarthout v. Cooke, 562 U.S. 216, 220 (2011). Due process requires that the State furnish a parole applicant with an opportunity to be heard and a statement of reasons for a denial of parole. Greenholtz, 442 U.S. at 16. "The Constitution does not require more." Id.; accord Swarthout v. Cooke, 562 U.S. at 220 (citation omitted); Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir. 2011); see also Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011) ("there is no substantive due process right created by the California's parole scheme").

Petitioner received an opportunity to be heard and a statement of reasons for the denial of parole, which is all the process he was due under the federal constitution. See id.

Petitioner contends that the Board denied him an "SB 261" hearing, an apparent reference to California Senate Bill 261, enacted in 2015. In 2013, the California Legislature passed Senate Bill 260 in response to Miller v. Alabama, 567 U.S. 460, 479 (2012) ("Miller"). In Miller, the Supreme Court held unconstitutional a mandatory sentence of life without the possibility of parole for a homicide committed when the defendant had been fourteen years old. Among other things, Senate Bill 260 enacted California Penal Code section 3501. Section 3501 provides that any individual serving a sentence imposed for a crime committed when the individual was under the age of eighteen may obtain a juvenile offender parole hearing. Senate Bill 260 also amended California Penal Code section 4801. Section 4801 now provides that, in considering the parole eligibility of such an individual, the Board of Parole Hearings should "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." See Cal. Penal Code § 4801(c) (eff. Jan. 1, 2014 to Dec. 31, 2015). In 2015, the California Legislature enacted Senate Bill 261, which extended the juvenile offender provisions of section 4801(c) to individuals (such as Petitioner) who were under the age of twenty-three at the time of the commitment offense. See Cal. Stats. 2015, c. 471 (S.B. 261, § 2, eff. Jan. 1, 2016).3

Petitioner's contention that the Board denied him an "SB 261" hearing alleges only a violation of state law, for which federal habeas relief is unavailable. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas relief unavailable for alleged state law violations); Michal v. Borders, 2017 WL 6942434, at *2 (C.D. Cal. Dec. 11, 2017), adopted, 2018 WL 400746 (C.D. Cal. Jan. 11, 2018) (claim that Board failed adequately to weigh youth offender factors under Senate Bill 260 not cognizable on federal habeas review); Young v. Pfeiffer, 2017 WL 8021753, at *4 n.6 (C.D. Cal. Dec. 29, 2017), adopted, 2018 WL 1135452 (C.D. Cal. Feb. 26, 2018) (claim that Board failed to afford petitioner a youth offender parole hearing raises only an alleged violation of state law, not cognizable on federal habeas review); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992) ("Federal habeas will not lie for errors of state law").4

Similarly, Petitioner's contentions that the evidence was insufficient to support the Board's decision and/or that the Board weighed that evidence improperly and/or that the Board failed to give due weight to favorable evidence also fail to state any claim for federal habeas relief. The California Supreme Court has held, as a matter of state law, that "some evidence" must exist to support a parole denial. See In re Lawrence, 44 Cal.4th 1181, 1212, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008). In Swarthout v. Cooke, however, the United States Supreme Court rejected the contention that the federal Due Process Clause contains a guarantee of evidentiary sufficiency with respect to a parole determination. Swarthout v. Cooke, 562 U.S. at 220-21 ("No opinion of ours supports converting California's `some evidence' rule into a substantive federal requirement."); see also Miller v. Oregon Bd. of Parole, 642 F.3d 711, 717 (9th Cir. 2011) (issue is not whether Board's parole denial was "substantively reasonable," or whether the Board correctly applied state parole standards; issue is simply "whether the state provided Miller with the minimum procedural due process outlined in [Swarthout v.] Cooke"). Accordingly, Swarthout v. Cooke bars any challenge to the sufficiency of the evidence to support the Board's decision. See Roberts v. Hartley, 640 F.3d at 1046 (it "makes no difference that [the petitioner] may have been subjected to a misapplication of California's `some evidence' standard. A state's misapplication of its own laws does not provide a basis for granting a federal writ of habeas corpus."); Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) ("[Swarthout v. Cooke] makes clear that we cannot consider whether `some evidence' of dangerousness supported a denial of parole on a petition filed under 28 U.S.C. § 2254.").

Also without merit is Petitioner's argument that the Board allegedly failed to follow state law concerning assertedly mandated terms and the use of juvenile matrices. Petitioner relies on In re Butler, 236 Cal.App.4th 1222, 187 Cal.Rptr.3d 375 (2015), rev'd, 4 Cal. 5th 728, 230 Cal.Rptr.3d 736, 413 P.3d 1178 (2018) (Petition, attachment, pp. 5-6, 8-9). In In re Butler, a state prisoner and the Board of Parole Hearings agreed to a settlement that required the Board to set base terms and adjusted base terms at life inmates' initial parole consideration hearings or, if such hearing had already taken place, at the next hearing. Id. at 1227. Subsequently, the Board moved to modify the settlement agreement, but the California Court of Appeal denied the motion. In re Butler, 4 Cal. 5th at 737-38. The California Supreme Court reversed and ordered the settlement agreement modified to relieve the Board of its obligations to calculate base terms and adjusted base terms. Id. at 747-48. The California Supreme Court reasoned that, due to changes in state law, including the passage of Senate Bill 260 in 2013 and the enactment of Senate Bill 230 in 2015,5 "[blase term calculations no longer play a role in the public safety assessments undertaken by the Board to determine the release dates for inmates sentenced to indeterminate terms. . . ." Id. at 742. "Instead, those inmates' indeterminate terms end when the inmate is both (1) found suitable for parole and (2) has served their statutory minimum term (subject, of course, to the Board's internal review procedures and the Governor's power to reverse a grant of parole or request further review." Id. (citing California Penal Code sections 3042(b), 3041.1, 3041.2).

Petitioner's reliance on the Court of Appeal's decision in In re Butler is unavailing because, inter alia, the California Supreme Court reversed the Court of Appeal's decision. As explained by the California Supreme Court in In re Butler, as of January 1, 2016, California law did not require the Board to set a base term for Petitioner or use the matrices formerly used to set a base term. In any event, Petitioner's claim that the Board violated the terms of the settlement and/or the Court of Appeal's decision in In re Butler alleges only a violation of state law which is not cognizable on federal habeas corpus. See Estelle v. McGuire, 502 U.S. at 67-68; see also Tome v. Gastelo, 2019 WL 920204, at *7 (C.D. Cal. Feb. 1, 2019), adopted, 2019 WL 917051 (C.D. Cal. Feb. 25, 2019) (allegation that Board failed to adhere to In re Butler settlement terms did not state a federal habeas claim); Butler v. Arnold, 2018 WL 5920147, at *2 (E.D. Cal. Nov. 13, 2018) (same).

For all of the forgoing reasons, Petitioner is not entitled to federal habeas relief on his claims that the Board improperly weighed the evidence, denied parole without sufficient evidence, failed to consider favorable factors including Petitioner's youth at the time of the offense and failed to follow state law concerning assertedly mandated terms and the use of juvenile matrices. See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

II. Petitioner's Claim That His Continued Incarceration Violates The Eighth Amendment Does Not Warrant Federal Habeas Relief.

Petitioner contends that the continued service of his life sentence following the denial of parole violates the Eighth Amendment. Petitioner asserts that the offense supposedly was not violent because the jury supposedly found Petitioner did not use a weapon and Petitioner allegedly moved the victim only thirty feet (Petition, attachment, pp. 3B, 6, 10).6 Petitioner also relies in part on United States Supreme Court cases delineating the constitutional limits of juvenile sentencing (Petition, attachment, pp. 3, 3A, 7). The Superior Court rejected Petitioner's claims that his continued detention violates the Eighth Amendment and the California constitution (Respondent's Lodgment 6, pp. 0178-79).

The Eighth Amendment forbids the imposition of "cruel and unusual punishments." United States Constitution, Amend. VIII. In Rummel v. Estelle, 445 U.S. 263, 265-66, 284-85 (1980), the Supreme Court upheld a recidivist sentence of life with the possibility of parole for the crime of obtaining $120.75 by false pretenses, following prior convictions for fraudulent use of a credit card to obtain $80 worth of goods and services and passing a forged check for $28.36. In Solem v. Helm, 463 U.S. 277, 289-90, 296 (1983), the Court struck down a recidivist sentence of life without the possibility of parole for uttering a "no account" check for $100, "one of the most passive felonies a person could commit," where the petitioner had three prior third-degree burglary convictions and convictions for obtaining money by false pretenses, grand larceny and driving while intoxicated. In Harmelin v. Michigan, 501 U.S. 957, (1991) ("Harmelin"), five Justices, although in disagreement regarding the rationale, upheld a sentence of life without the possibility of parole for a first offense of possession of more than 650 grams of cocaine. In a concurring opinion, Justice Kennedy, joined by Justices O'Connor and Souter, opined that a non-capital sentence could violate the Eighth Amendment if it were grossly disproportionate to the crime. Id. at 996-1009. The Ninth Circuit subsequently recognized Justice Kennedy's concurring opinion as the "rule" of Harmelin. See United States v. Bland, 961 F.2d 123, 128-29 (9th Cir.), cert. denied, 506 U.S. 858 (1992).

In 2003, the United States Supreme Court decided two cases involving the constitutionality of sentences imposed under California's Three Strikes Law. In Ewing v. California, 538 U.S. 11 (2003), the Court upheld a sentence of twenty-five years to life for felony grand theft consisting of the non-violent theft of three golf clubs, where the defendant's prior offenses included convictions for robbery, theft, grand theft auto, petty theft with a prior, battery, multiple burglaries, possession of drug paraphernalia, appropriation of lost property, unlawful possession of a firearm and trespassing. In Lockyer v. Andrade, 538 U.S. 63 (2003) ("Andrade"), the Court upheld, under the standard of review set forth in 28 U.S.C. § 2254(d), the California Court of Appeal's determination that a total sentence of fifty years to life for two convictions of petty theft with a prior theft-related conviction, (arising out of two non-violent incidents in which the petitioner shoplifted videotapes), was not unconstitutional. In Andrade, the petitioner's prior convictions were for theft, residential burglary, transportation of marijuana, and escape. Andrade, 538 U.S. at 66-67.

In Andrade, the United States Supreme Court acknowledged that, "in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Andrade, 538 U.S. at 72. However, the Court observed that "one governing legal principle emerges as `clearly established' under [28 U.S.C.] § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years." Id.

Thus, "[t]he threshold determination in the eighth amendment proportionality analysis is whether [Petitioner's] sentence was one of the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." United States v. Bland, 961 F.2d at 129 (citations and quotations omitted); see Andrade, 538 U.S. at 73 (gross proportionality principle "applicable only in the `exceedingly rare' and `extreme' case"; citations omitted); Harmelin, 501 U.S. at 1001 (1991) (Kennedy, J., concurring) ("The Eighth Amendment does not require strict proportionality between crime and sentence"); see also Cocio v. Bramlett, 872 F.2d 889, 892 (9th Cir. 1989) ("we are required to defer to the power of a state legislature to determine the appropriate punishment for violation of its laws based on principles of federalism, unless we are confronted with a rare case of a grossly disproportionate sentence").

Petitioner's claim fails at this threshold level. "[K]idnapping is one of the most serious of all crimes." In re Maston, 33 Cal.App.3d 559, 563, 109 Cal.Rptr. 164 (1973) (citations omitted). "By its very nature it involves violence or forcible restraint." Id.; see also Bates v. Johnston, 111 F.2d 966, 967 (9th Cir.), cert. denied, 311 U.S. 646 (1940) ("Kidnapping is a heinous offense."); Cal. Penal Code section 667.5(c)(14) (kidnapping is a violent felony for purposes of recidivist sentencing); cf. United States v. Kenney, 724 Fed. App'x 551, 555 (9th Cir.), cert. denied, 138 S.Ct. 2614 (2018) (district court did not plainly err in holding the crime of kidnapping for robbery to be a "violent felony" under recidivist sentencing provisions of Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(i)).

As indicated above, the United States Supreme Court has rejected disproportionality challenges to extremely lengthy sentences imposed for crimes far less grave than Petitioner's crime. See, e.g., Ewing (25 years to life for the non-violent theft of three golf clubs); Andrade (50 years to life for two non-violent petty thefts); Harmelin (life without the possibility of parole for first offense possession of cocaine); Hutto v. Davis, 454 U.S. 370 (1982) (40 years for possession and distribution of marijuana); Rummel v. Estelle, 445 U.S. at 263 (life with the possibility of parole for obtaining $120.75 by false pretenses). A life sentence for kidnapping for robbery is not grossly disproportionate. See Eckert v. Tansy, 936 F.2d 444, 448-50 (9th Cir. 1991) (two consecutive life sentences for kidnapping with use of a firearm not unconstitutional); United States v. Anderson, 561 F.2d 1301, 1302-03 (9th Cir.) (per curiam), cert. denied, 434 U.S. 943 (1977) (concurrent life sentences for kidnapping a mother and son, after defendant approached them with gun in his hand, not unconstitutional); Bates v. Johnston, 111 F.2d at 967 (life sentence for kidnapping in interstate commerce not unconstitutional); Hung Duonq Nquon v. Virqa, 2014 WL 996215, at *2-3 (E.D. Cal. Mar. 13, 2014) (life sentence for kidnapping and robbery with use of a firearm not disproportionate); Harris v. Long, 2012 WL 2061698, at *9 (C.D. Cal. May 10, 2012), adopted, 2012 WL 2061695 (C.D. Cal. June 6, 2012) (life sentence for kidnapping for ransom and robbery not unconstitutional); Grant v. Swarthout, 2010 WL 3733846, at *8 (E.D. Cal. Sept. 16, 2010) (life sentence for kidnapping for robbery not unconstitutional).

Petitioner' reliance on Supreme Court cases concerning juvenile sentencing is unavailing. Petitioner cites, inter alia, Graham v. Florida, 560 U.S. 48, 74-75 (2010) ("Graham") (Eighth Amendment prohibited the imposition of a sentence of life without the possibility of parole on a juvenile convicted of a non-homicide offense), and Miller v. Alabama, 567 U.S. 460, 479 (2012) ("Miller) (Eighth Amendment prohibited the imposition of a mandatory sentence of life without the possibility of parole on a juvenile convicted of a homicide). The defendant in Graham was sixteen years old at the time of the offense; the defendant in Miller was fourteen. Graham, 560 U.S. at 52; Miller, 567 U.S. at 465. In 2016, the Supreme Court held that Miller was retroactive on state collateral review. Montgomery v. Louisiana, 136 S.Ct. 718, 736 (2016). The Court then indicated, however, that giving Miller retroactive effect would not require states to relitigate sentences in every case in which a juvenile offender had received a mandatory sentence of life without parole. Id. at 736. The Court indicated that a state could remedy a Miller violation "by permitting juvenile offenders to be considered for parole, rather than by resentencing them." Id.

Unlike the defendants in Graham and Miller, Petitioner was not a juvenile at the time he committed his offense; Petitioner then was twenty years old. Hence, the principles set forth in Graham and Miller simply do not apply to Petitioner. See United States v. Shill, 740 F.3d 1347, 1356-57 (9th Cir.), cert. denied, 135 S.Ct. 147 (2014) (categorical rules set forth in Graham and Miller inapplicable where defendant was not a juvenile at the time of the offense); United States v. Edwards, 734 F.3d 850, 853 (9th Cir. 2013) ("The Supreme Court's recent Eighth Amendment jurisprudence on criminal punishment for juvenile conduct" held inapposite to claim that Eighth Amendment forbade use of juvenile convictions to enhance sentence, because "[t]he conduct for which Edwards is being punished occurred while he was an adult, not a juvenile"); Cervantes v. Biter, 2018 WL 7135659, at *4 (C.D. Cal. Oct. 29, 2018), adopted, 2019 WL 342100 (C.D. Cal. Jan. 24, 2019) (Miller inapplicable where petitioner committed crimes at the age of eighteen); Anaya v. Sherman, 2018 WL 3917977, at *8-11 (E.D. Cal. Aug. 15, 2018) (upholding sentence of 84 years to life for inmate who committed offenses five months after his eighteenth birthday); Patterson v. Davey, 2018 WL 2047002, at *11 (E.D. Cal. May 1, 2018) (sentence of life with the possibility of parole for offense committed when petitioner was nineteen not unconstitutional; "Petitioner fails to cite any authority for his argument that Miller must be extended to a 19-year-old."); Young v. Pfeiffer, 2017 WL 8021753, at *3 (C.D. Cal. Dec. 29, 2017), adopted, 2018 WL 1135452 (C.D. Cal. Feb. 26, 2018) (Miller and Graham inapplicable where petitioner committed offense at age nineteen); Nampula v. McDowell, 2017 WL 3224815, at *14 n.13 (C.D. Cal. May 18, 2017), adopted, 2017 WL 3224462 (C.D. Cal. July 26, 2017) (Miller inapplicable where petitioner committed offense when he had "just turned 18"); Mendez v. Sherman, 2016 WL 2753773, at *12-15 (E.D. Cal. May 11, 2016) (upholding sentence of life without parole for allegedly "immature and uneducated" offender who committed offense four months after his eighteenth birthday); see also Jackson v. Superintendent Mahanoy SCI, 2018 WL 3996627, at *1 (3d Cir. May 25, 2018) (rejecting claim that petitioner was entitled to relief under Miller "because [Miller's] holding does not apply to non-juveniles"); United States v. Marshall, 736 F.3d 492, 497-500 (6th Cir. 2013), cert. denied, 573 U.S. 922 (2014) (upholding mandatory minimum sentence for young adult who claimed he suffered from growth hormone deficiency which assertedly rendered him the equivalent of a juvenile at the time of the offenses; "[a]n immature adult is not a juvenile," and so is not entitled to the Eighth Amendment protections accorded to juveniles); People v. Perez, 3 Cal. App. 5th 612, 617, 208 Cal.Rptr.3d 34 (2016) (Miller inapplicable to defendant who was twenty years old at the time of the offenses). No clearly established Supreme Court law supports Petitioner's Miller/Graham challenge to his continued detention.

Furthermore, unlike the defendants in Miller and Graham, Petitioner did not receive a sentence of life without the possibility of parole. Petitioner's incarceration, although lengthy, is not the functional equivalent of life without the possibility of parole because he continues to have opportunities for parole within his lifetime. See Demirdlian v. Gipson, 832 F.3d 1060, 1077 (9th Cir. 2016), cert. denied, 138 S.Ct. 71 (2017) (sentence of two consecutive terms of 25-years to life, where parole eligibility arose at age 66, was not the "functional equivalent" of life without parole); see also Bunn v. Lopez, 740 Fed. App'x 145, 147 (9th Cir. 2018) (California Penal Code section 3051 "effectively moots a Miller claim by converting a juvenile's LWOP sentence into one for life with the possibility of parole after 25 years"). Petitioner also relies on In re Palmer, 33 Cal. App. 5th 1199, 245 Cal.Rptr.3d 708 (2019) ("Palmer") for the proposition that his sentence supposedly is unconstitutional. In Palmer, the California Court of Appeal held that the Board's repeated refusal to grant parole to an inmate who had served approximately thirty years in prison for the offense of kidnapping for robbery at the age of seventeen violated the state and federal constitutions. Id. at 1202, 1221.

The Palmer decision does not alter the result herein. First, the Palmer decision involved a juvenile offender, unlike Petitioner. The Palmer court emphasized the defendant's extreme youth at the time of the crime, citing, inter alia, Miller and Graham. Palmer, 33 Cal. App. 5th at 1209-13.

Second, most of the Palmer court's analysis involved the application of state constitutional principles espoused in two state court cases, People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 (1983), and In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1972). Palmer, 33 Cal. App. 5th at 1207-21. The reasoning of state court decisions construing state law cannot compel habeas relief from a federal court. See Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) (claim that sentence violated state constitutional sentencing standards set forth in People v. Dillon not cognizable on federal habeas); Bow v. Martinez, 2016 WL 7826516, at *8 n.6 (C.D. Cal. Dec. 5, 2016), adopted, 2017 WL 187129 (C.D. Cal. Jan. 17, 2017) (In re Lynch not binding on federal habeas court). At the very end of its opinion, the Palmer court did add a conclusory statement that its analysis "would yield the same conclusions under the federal Constitution." Palmer, 33 Cal. App. 5th at 1221. However, a state court's interpretation of the federal constitution is not binding on this Court. See William Jefferson & Co., Inc. v. Bd. of Assessment and Appeals No. 3 ex rel. Orange County, 695 F.3d 960, 963 (9th Cir. 2012), cert. denied, 568 U.S. 1213 (2013); Bittaker v. Enomoto, 587 F.2d 400, 402 n.1 (9th Cir. 1978), cert. denied, 441 U.S. 913 (1979).

Finally, to the extent Petitioner contends the Board violated the state constitutional law precepts discussed in Palmer, federal habeas relief is unavailable. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Windham v. Merkle, 163 F.3d at 1106 (claim that sentence violated state constitutional sentencing standards set forth in People v. Dillon not cognizable on federal habeas); Frias v. Wilson, 373 F.2d 61, 62 (9th Cir. 1967) ("Of course a state court may apply more liberal standards than those declared by the [United States] Supreme Court; however, the issue in a federal court remains whether judged by federal standards a petitioner was accorded the minimum guarantees afforded by the United States Constitution.").

In sum, the Superior Court's rejection of Petitioner's Eighth Amendment claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on this claim.

RECOMMENDATION

For all of the foregoing reasons,7 IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.