Brazil v. Davison (639 F. Supp. 2d 1129, 2009)

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

S. JAMES OTERO, District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the Petition for Writ of Habeas Corpus and other papers along with the attached Report and Recommendation of the United States Magistrate Judge, and has made a de novo determination of the Report and Recommendation. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected.

IT IS ORDERED that a Judgment be issued dismissing the instant Petition for Writ of Habeas Corpus with prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve forthwith a copy of this Order and the Judgment of this date on the petitioner and counsel for respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JEFFREY W. JOHNSON, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable S. James Otero, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”) be denied and the action dismissed with prejudice.

I.

PROCEDURAL HISTORY

Petitioner Darlene Brazil is a California state prisoner serving two concurrent terms of 15-years-to-life for her 1987 conviction by plea agreement for the second degree murders of her four-year-old and one-year-old sons. (See Petition at 2; Lodgments 1-3.) Petitioner, represented by counsel in the current action, challenges a November 29, 2005 decision by a panel of the California Board of Prison Hearings (“Board”) which found Petitioner unsuitable for parole under California Penal Code § 3041(b), resulting in a one-year parole denial. (See Petition at 1, 5-6; see also Petition Memorandum of Points and Authorities (“Petition Mem.”) at 1-37; Lodgment 3.) This appears to have been the fifth such denial by the Board; Petitioner’s minimum eligible parole date was January 14, 1996. (See Petition Mem. at 5-6; Lodgment 3 at 26-27.)

Petitioner sought collateral review of the Board’s decision before the state superior, appellate, and supreme courts, in that order. (Lodgments 4-6.) Each state court denied relief, with the last such denial issued by the California Supreme Court on August 16, 2006. (Id.) Petitioner filed the present Petition on September 11, 2006. (Petition at 1.) On December 7, 2006, Respondent filed her Answer to the Petition. (Answer at 1-10; see also Memorandum of Points and Authorities in Support of Answer (“Answer Mem.”) at 1-12.) Petitioner filed her Traverse to the Answer on December 21, 2006, as well as additional briefing on March 21, 2007. (See Traverse at 1-23; Notice of Newly Published Ninth Circuit Authority at 1-5.)

The matter stands submitted and ready for decision. For the reasons that follow, the Magistrate Judge recommends that the Court deny the Petition and dismiss this action with prejudice.

II.

FACTUAL HISTORY

The following factual background underlying Petitioner’s murder convictions is taken from Petitioner’s probation report, which was adopted and incorporated by reference, in part and without objection by Petitioner or her hearing counsel, by the Board for its statement of the offenses. (Lodgment 2 at 8-11; see Lodgment 3 at 40) (citing id. at 8-9 (original page numbers 4-5).)

El Dorado County Sheriffs reports indicate officers Chaucer and Mays were dispatched to 1111 Excelsior Road, Placerville, at 2:45 a.m. on May 20, 1986, regarding a homicide. Upon arrival they were met in the driveway by Phillip Dore who reported the crime. He directed the officers inside the residence where they observed two adult women on a “hide-a-bed” in the living room. At that time Deputy Chaucer directed the emergency medical technicians to the room.

Deputy Chaucer asked the two women (Myrtle Norcom and [Petitioner]) to move out of the way for the E.M.T.’s and he saw two young boys on the bed. They were motionless. He moved [Petitioner] to the kitchen. He observed blood on her clothing and her right wrist appeared to be cut. Deputy Chaucer asked her what happened and she stated, “My husband was going to take my kids and I suffocated them and was going to kill myself to be with them.”

[Petitioner] was placed under arrest for the crime of murder and transported to Marshall Hospital for medical treatment. William Joseph Dingess, age four, was dead at the scene. Brian Douglas Adolph, Jr., age one, was transported to Marshall Hospital where he was pronounced dead. Later autopsies revealed both children died of “probable asphyxia” (suffocation).

Detectives Schmalz and Wilson arrived at the scene at 3:30 a.m. They observed the livid body of Billy Dingess on the bed, and saw spots of blood and mucus on the sheet near the body. A white pillow was also observed on the bed. A blood stained, wood-handled kitchen knife was located on a couch near the hide-a-bed.

Myrtle Norcom and Philip Dore, the owners of the residence, stated they were awakened by screams coming from the living room. When they entered the room they saw [Petitioner] lying on the bed next to the children with a leather belt secured around her neck. Dore removed the belt and observed the bleeding cut on the inside of her right wrist. Norcom indicated she asked [Petitioner] why and she stated “Fred (Dingess) said he didn’t want to see me anymore and I don’t want to live without him.” Norcom then observed the children and knew something was wrong; Dore was telephoning 911 at that time. Norcom picked up one-year-old Brian and could see he was not breathing; [Petitioner] stated, “I’m sorry, I’m sorry”. She then rolled over and hugged four-year-old Billy stating, “I love you, I’m sorry”. Witness Norcom indicated she has been friends with [Petitioner] for some time and her relationship was somewhat like mother-daughter with [Petitioner] and as grandmother-sons with the victims.

At 5:20 a.m. [Petitioner] was interviewed by Detectives Schmalz, Wilson and Hennick after she had been booked into custody at the jail. [Petitioner] stated that on the previous night, May 19, 1986, she was in her ex-husband’s (Fred Dingess) car with a friend and her children when she observed him in front of Raymond’s Liquor Store. They argued for a period of time after which she took her friend home. As she was driving to the residence on Excelsior Road the vehicle broke down in front of the 49er Liquor Store on Main Street, Placerville. Dingess pulled up near her with her vehicle and subsequently exchanged cars. As she left with her children to return home she stated to Dingess, “No matter what happens, we all still love you”.

She stated she returned to the residence on Excelsior Road at approximately 11:00 p.m. After everyone else went to bed she obtained a knife from the kitchen sink. She stated she was sitting on the bed, the knife near her, when her son, Billy, began to awaken. She said she told him she loved him and that they would always be together. She indicated he stated that he loved her [too]. She stated she took one of the white pillows from the bed, placed it over Billy’s face and held it there until he stopped struggling. At this point the other child, Brian, began to wake up and she gave him a baby bottle to quiet him. After Billy stopped struggling, she took a pillow and did the same to Brian. She indicated she then took the leather belt, placed it around her neck and tightened it. She related she took the knife and cut her right wrist three times. She believes she lost consciousness and then awoke screaming. [Petitioner] stated to the detectives that the reason she killed her children was because she saw no use in life and wanted the children to be with her. [Petitioner] has been in custody since May 20,1986.

A later interview by the detective with Frederick Dingess, [Petitioner’s] ex-husband, confirmed the argument near Raymond’s Liquor Store and the exchange of vehicles near the 49er Liquor Store. An interview with Myrtle Norcom confirmed the troubled relationship between [Petitioner] and her ex-husband and the circumstances of the crime scene upon her arrival that night.

(Lodgment 2 at 8-11.)

The probation report noted also that, in her statement to the probation officer who prepared the report, Petitioner’s description of “the events of the night and early morning hours of this offense was quite similar to her statement to detectives on the day of her arrest.” {Id. at 11-12; see also id. at 12-13 (summarizing Petitioner’s statement).)

At her parole hearing, Petitioner also described the course of events which culminated in the murders. (Lodgment 3 at 40-50.) Petitioner’s account was largely similar to the factual summary set forth above but offered additional detail regarding the content of her argument with her former husband in the hours before the murders and why that argument, as she has claimed, led her to decide to kill both of her sons. (Id.)

According to Petitioner, when she encountered her former husband, “he had a girl with him.” (Lodgment 3 at 40-41.) He then “said some words to me about the girl that he had, and that he’s been with her and that she was better in bed and all that stuff. I got very distraught.” (Id. at 41.) Petitioner recalled “crying very, very, very much” at a later car exchange with her ex-husband and that, before she drove back to the nearby residence where she and her children were staying, told her ex-husband, “ ‘No matter what, always know that we all love you very much.’ ” (Id.) Petitioner then offered her account of the subsequent murders themselves, which was similar to the above-noted account she gave to police detectives and the probation officer. (Id. at 41-42; see Lodgment 2 at 8-13.)

After Petitioner concluded her account, the presiding Board commissioner noted to Petitioner that why someone would have an emotional response to the “loss of a loved one or a divorce and separation” would be “fairly obvious to most people.” (Lodgment 3 at 42.) But, the commissioner continued,

What people have a difficult decision understanding is why someone would kill children. That’s the difficult part. And certainly, we have heard of people ... who have committed suicide, and these things happen and they’re unfortunate .... But again, the killing of children is not common. So ... as a hearing board we have a difficult time understanding some of these things.... [A]nd to take a look at your opportunity for parole we have to understand as much as we can of what you were thinking about that night, how it affected you, how it affects the crime, the gravity of the crime, and where you are today and what you’ve done over the last these many years since you’ve been here. So I have to ask you, why did you kill the children?....

(Id. at 42-43.) Petitioner responded that,

[U]nfortunately I took my emotions and my feelings and put them on the innocent victims. I didn’t see that there could have been somebody else out there for them.... [¶].... [¶].... I figured that the best and safest place for all of us to go since that night, that was the last person in the whole world that I was told that ever cared about me and loved me, so since he said all that, that meant that there was nobody left in the world that loved me and cared about me. And I took those feelings and I put them on my boys also, and so that’s why I figure the safest place for us to go would be to heaven where we would be okay....

(Id. at 43-45.)

Petitioner stated that she had not ingested drugs or alcohol before the murders and that, while both children had struggled while she was suffocating them, it had not occurred to Petitioner to stop her actions. (Lodgment 3 at 48-49.) Petitioner noted also that she had “just turned 21 years old” at the time of the .murders, “was unaware of the help out there” and “actually didn’t even think I had any emotional problems,” but that “[tjoday I reach out for help. Today I ... have learned and I’ve grown, and I know that this will never happen again.” (Id. at 49.)

After presentation of additional matters regarding Petitioner’s parole suitability (discussed further below), the Board recessed proceedings, and then announced its decision to deny parole because of the Board’s conclusion that Petitioner was “not suitable for parole and would pose an unreasonable risk of danger to society or threat to public safety if released from prison.” (Lodgment 3 at 50-117.) The Board noted the following circumstances upon which it had relied in reaching that conclusion. (Id.)

The Board first stated:

[T]he Hearing Panel takes many factors into consideration when we take a look at parole. And one that is first and foremost is, of course, the commitment or the offense and the gravity of the offense. And the horrendous nature of this crime, of course, could not be escaped. The commitment offense did involve multiple victims. It was a suffocation death of William Dingess, age four, and Brian Adolf, age one, by the inmate. These were her children. They were especially vulnerable and the act was cruel and vicious. Further, it was a calculated act, it was a calculated act on her part. And she did in fact have time to think about it. It wasn’t an immediate response to danger. In addition, she also thought about how she was going to take even her own life. Therefore, the planning of the entire sequence was in fact in place when it all happened. It was carried out in a dispassionate manner and by all accounts she very calmly went about the murder of two defenseless children. The death of these two young boys showed obvious lack of regard for life and suffering [of] others. The motive for the crime was truly inexplicable. The inmate states she wanted the three of them to go to heaven. Bitter and unresolved relationship issues between she and her former husband she felt was going to be resolved. And her way of resolving them of course was the murder of the two children .....

(Lodgment 3 at 108-109.)

The Board then noted that Petitioner had “a fairly stable social history” and “had no signs of abuse or molestation in her background”; the Board noted also that Petitioner “had no use for illegal drugs or alcohol early in her life.” (Lodgment 3 at 109-10.) The Board stated that Petitioner’s “[institutional behavior has been very good,” noting “one serious 115 disciplinary report for 2-3 of 1995 for homosexual activity” and “two 128A Counseling Chronos, the last one being 10-12 of 1993 for not standing for count.” (Id. at 110.)

With respect to Petitioner’s then-most recent 2005 psychological evaluation, the Board noted that while the report contained statements by the evaluating psychologist which appeared to indicate support for Petitioner’s release, the psychologist had in fact stated that Petitioner’s “‘risk of future dangerousness probably falls in the low to moderate range in relation to the risk of the population and released felons.’ ” (Lodgment 3 at 110; see Lodgment 8 at 195.) The Board noted that support for release generally would be stated when an inmate’s risk of dangerousness was “in the low and not necessarily in the moderate range. But he still views you as low to moderate.” (Lodgment 3 at 110-11; see also id. at 116.) In addition, the Board noted that the psychiatrist who had prepared the next most recent evaluation only some two years before (in 2003) was not supportive of Petitioner’s release and had stated, “ ‘[tjhough the inmate has made significant strides in improving herself, I do not believe she has achieved the results that would be necessary for her to maintain some level of stability should she be released to the community.’ ” (Lodgment 3 at 111; see also Lodgment 7 at 188.)

The Board noted that, with respect to parole plans, Petitioner did have “viable residence plans,” but that her employment plans “need[ed] to be firmed up, they need to be more detailed, and they need to be more specific,” although Petitioner did have marketable (computer) skills, which the Board also recommended that she keep current. (Lodgment 3 at 111-12.) The Board noted further that the prosecuting district attorney’s office had recommended against Petitioner’s release, and that letters supporting her release, as well as letters and petitions opposing her release, also had been presented to the Board. (Id. at 112.) The Board commended Petitioner for her participation in self-help programs while incarcerated, noting that certain “programming” was particularly relevant in light of the nature of her commitment offense and “dealing with codependeney” issues, and also in terms of anger management and “resolvfing] stressful situations,” and recommended that she “keep up in the [self-help] areas that are available” in prison. (Id. at 112-14.)

After issuing a one-year denial, the Board recommended that Petitioner “stay disciplinary free”, continue upgrading herself vocationally and educationally (including working toward a junior college degree), and continue participating in self-help programs. (Lodgment 3 at 114-16.)

On subsequent collateral review, the El Dorado County Superior Court rejected Petitioner’s claims challenging the Board’s parole denial and the propriety of her continued incarceration, stating that,

The Court has reviewed the petition for writ of habeas corpus and exhibits attached thereto. From this review, it is apparent that the Board ... considered all relevant factors in deciding to deny petitioner’s parole release. The Board denied parole based on the seriousness of the crimes and two psychiatric reports in 2005 and 2003 which indicated either that petitioner was a “low to moderate” risk of future dangerousness or not stable enough to be released. This was essentially a decision that petitioner would still pose a public safety risk if released from prison. This conclusion was supported by “some evidence” and thus was not arbitrary or capricious or violative of due process of law (In re Rosenkrantz (2002) 29 Cal.4th 616, 658, 128 Cal.Rptr.2d 104, 59 P.3d 174).

A prima facie case for relief has not been stated by the petition. Accordingly, the petition for writ of habeas corpus relief is denied.

(Lodgment 4 at 119.) The California Court of Appeal and California Supreme Court thereafter summarily denied relief of the same claims. (Lodgments 5-6.)

III.

PETITIONER’S CLAIMS

In Grounds One through Three, Petitioner contends that the Board’s decision to deny parole violated her right to due process under the federal constitution because:

A. The basis for decision articulated by the Board was “arbitrary, unsupported by any evidence, inapposite to the record, inherent in all second-degree murders, and/or irrelevant to parole determination under the [state parole] regulations” (Ground One);

B. The Board failed to establish a nexus between the cited offense factors and Petitioner’s “current parole risk, because the [cited] factors apply only to special circumstance first-degree murders, and because the [Board] lacked the requisite preponderance of evidence indicating that [Petitioner’s] parole would pose an unreasonable risk of danger to public safety; no rational [Board] panelist who reviewed the evidence of [Petitioner’s] parole suitability could have found a preponderance of unreasonable risk” (Ground Two); and

C. An interminable denial of parole “based solely on her commitment of the second degree murders” impermissibly “has converted [Petitioner’s] term [of 15-years-to-life into a term of] life without any possibility of parole” because neither Petitioner’s offense facts nor parole suitability otherwise can improve, Petitioner purportedly has served the maximum prison term prescribed for the particular facts of her offenses, and Petitioner is otherwise suitable for release on parole (Ground Three).

(Petition Mem. at 8-32 (capitalization omitted).)

Grounds Four and Five set forth a number of generalized federal due process arguments which allege that California’s governor(s) and/or the Board have and maintain a systemic policy and bias against granting parole such that Petitioner’s parole denial resulted from such policy and bias and not from her actual suitability for parole and, thus, her continued incarceration is improper. (Petition Mem. at 32-35.) In this respect, Petitioner contends that:

A. California’s “executive branch” has an “anti-parole policy” which impermissibly led to the denial of parole in her case; in addition, in violation of mandatory state law calling for the selection and appointment of commissioners to “ ‘reflect as nearly as possible a cross-section of the racial, sexual, economic, and geographic features of the population of the state,’ ” California’s “executive branch” has, instead, constituted the Board with commissioners who are “strictly political appointees to promote the governors’ publicly-proclaimed anti-parole mandate” and who themselves also are biased against parole and otherwise do not fulfill the relevant statutory cross-section mandate, and, as a result, “it is virtually impossible to constitute [an individual] parole panel not inherently biased against Petitioner and her parole” (Ground Four); and

B. California’s “[g]overnor” and the Board “have established and implemented a firm policy that precludes the parole of any indeterminately sentenced inmate in Petitioner’s position whose commitment offense involved the murder of an infant or child” (Ground Five).

(Id. (capitalization and citations omitted).)

Finally, in legal argument designated as a claim for relief (Ground Six) and pertaining to which standard of review should be applied to Petitioner’s present federal due process claims, Petitioner contends that the “some evidence” standard which the Ninth Circuit (and California) has repeatedly concluded applies to judicial review of federal due process claims regarding parole denials by a state parole board or governor (discussed further below) is inapplicable herein. (Petition Mem. at 35-36.) While Petitioner’s argument does not set forth a freestanding claim for federal habeas relief, the Court addresses Petitioner’s argument below.

IV.

STANDARD OF REVIEW

The Court has reviewed the present Petition under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), which applies in parole denial eases. See Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-27 (9th Cir.2006). In relevant part, the AEDPA provides:

(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. § 2254.

The Supreme Court has explained the standard of review under the AEDPA 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 [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme 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 [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner” case.

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an “unreasonable application” of Supreme Court precedent if it is “objectively unreasonable” which “requires the state court decision to be more than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1169-70 (9th Cir. 2003). Thus, “an unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); accord Price v. Vincent, 538 U.S. 634, 643, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) (even where reviewing court might find that error occurred, habeas relief is not warranted where state court denial of claim is “at least reasonable”).

Under the AEDPA, circuit law may be “persuasive authority for purposes of determining whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004) (quotation omitted). However, only the Supreme Court’s holdings need be reasonably applied by the state courts under the AEDPA. Andrade, 538 U.S. at 71-72, 123 5.Ct. 1166.

With respect to the present Petition, Grounds One through Three advance the same principal argument: the Board’s decision to deny parole violated Petitioner’s right to federal due process because the decision was contrary to and not supported by evidence in the record, given that such evidence instead showed Petitioner’s suitability for parole release under relevant state law. (Petition Mem. at 8-32.) Grounds Four and Five (as well as certain portions of Grounds One through Three) present more generalized federal due process allegations regarding the propriety of Petitioner’s continued incarceration which are not directly linked to the specific parole proceedings in this case and a determination of whether Petitioner is suitable for parole release. (Id. at 8-35.)

The record reflects ' that Petitioner raised the allegations of Grounds One through Five on collateral review before the El Dorado County Superior Court, the California Court of Appeal, and the California Supreme Court, in that sequence. (Lodgments 4-6.) The state superior court denied relief by reasoned order which expressly addressed the Board’s decision to deny parole. (Lodgment 4 at 119 (citations omitted).) But, while the state superior court’s order denied the petition in its entirety, it did not expressly address Petitioner’s more generalized federal due process allegations set forth in Grounds One through Five. (Id.) Thus, the state superior court’s order indicates a summary denial of Petitioner’s more generalized due process allegations. (Id.) Without citation to authority, the state appellate and supreme courts thereafter summarily denied relief of all of Petitioner’s claims. (Lodgment 5 at 151; Lodgment 6 at 152, 159-60.) Thus, all three state courts issued summary denials of Petitioner’s more generalized federal due process arguments. (Lodgments 4-6.)

With respect to this Court’s review of those portions of Grounds One through Three which are directed toward the Board’s decision to deny parole, the state superior court’s order is the last reasoned state-court decision thereto. (Lodgments 4-6.) Therefore, that order is the focus of the Court’s review under the AEDPA with respect to these portions of Grounds One through Three. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (“[w]here there has been one reasoned state court judgment rejecting a federal claim, [federal habeas courts should presume that] later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground”).

With respect to the more generalized federal due process allegations set forth in Grounds One through Five, the record reflects summary denials of such allegations. (Lodgments 4-6.) While a summary denial is considered to be on the merits, see, e.g., Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.1992), it does not comprise a “reasoned” state court decision. See Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.2005); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003); Greene v. Lambert, 288 F.3d 1081, 1088-89 (9th Cir.2002). Therefore, the Court must conduct an “independent review of the record” with respect to these allegations. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.2000); Allen v. Ornoski, 435 F.3d 946, 955 (9th Cir.2006) (“ ‘independent review1 ” is not the equivalent of de novo review, but rather is a style of review which views the state court decision “through the ‘objectively reasonable’ lens ground by [the Supreme Court in] Williams [v. Taylor]”)

V.

THE BOARD’S DECISION TO DENY PAROLE

Petitioner’s first through third claims advance the same principal argument: the Board’s decision to deny parole violated Petitioner’s right to federal due process because the decision was contrary to and not supported by the evidence in the record, given that the evidence showed instead Petitioner’s suitability for parole release under relevant state law. (Petition Mem. at 8-32.) Petitioner’s contentions have no merit.

California Penal Code section 3041 vests ... all ... California prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause. Sass [v. California Board of Prison Terms, 461 F.3d 1123, 1128 (9th Cir.2006)]; Biggs [v. Terhune, 334 F.3d 910, 914 (9th Cir.2003) ]; McQuillion v. Duncan, 306 F.3d 895, 903 (9th Cir.2002); see also Bd. of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)).

Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir.2007) (as amended).

A parole board’s decision to deny parole does not satisfy the requirements of due process unless “some evidence” supports the decision. Sass, 461 F.3d at 1128-29 (adopting the “some evidence” standard for disciplinary hearings outlined in Superintendent, Massachusetts Correctional Inst. v. Hill, 472 U.S. 445, 455-57, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). The “some evidence standard is minimal, and assures that ‘the record is not so devoid of evidence that the findings of the ... board were without support or otherwise arbitrary.’ ” Id. at 1129 (quoting Hill, 472 U.S. at 457, 105 S.Ct. 2768). Under application of the “some evidence” standard, “ ‘the relevant question is whether there is any evidence in the record that could support the conclusion reached’ ” by a state parole board. Id. at 1128 (quoting Hill, 472 U.S. at 455-56, 105 S.Ct. 2768). Thus, evidence that is “meager” or indirect may comprise “some evidence” to support an administrative decision. Hill, 472 U.S. at 457, 105 S.Ct. 2768; McQuillion, 306 F.3d at 904 (“[t]he fundamental fairness required by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact”) (citations omitted, emphasis in original); Sass, 461 F.3d at 1128-29; Irons, 505 F.3d at 851.

In addition, “[w]hen [a reviewing court assesses] whether a state parole board’s suitability determination was supported by ‘some evidence’ in a habeas case, [the court's] analysis is framed by the statutes and regulations governing parole suitability determinations in the relevant state.” Irons, 505 F.3d at 851 (citing Biggs, 334 F.3d at 915). In California, state authorities are allowed “to consider a myriad of factors when weighing the decision of granting or denying parole.” Biggs, 334 F.3d at 915; see, e.g., In re Powell, 45 Cal.3d 894, 902, 248 Cal.Rptr. 431, 755 P.2d 881 (1988) (California authorities’ discretion in parole matters is “great” and “involves the deliberate assessment of a wide variety of individualized factors on a case-by-case basis, and the striking of a balance between the interests of the inmate and the public”) (internal quotations and citation omitted).

Here, the Board’s parole denial rested on application of California Penal Code § 3041(b). (Lodgment 3 at 26-27, 108-17) Section 3041(b) provides that the Board panel “shall set a release date unless it determines that the gravity of the current or convicted offense or offenses, or the timing and gravity of [the] current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.” In addition,

The regulations governing murderers serving indeterminate life sentences have long provided that determination of an inmate’s suitability for parole under section 3041, subdivision (b) must precede any effort to set a parole release date under the uniform-term principles of section 3041, subdivision (a). As currently worded, the regulations specify that “[t]he panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal.Code Regs., tit. 15, §§ 2402(a), italics added.)

Dannenberg, 34 Cal.4th at 1080, 23 Cal.Rptr.3d 417, 104 P.3d 783.

Section 2402 of Title 15 of the California Code of Regulations sets forth factors for a Board panel to consider when making a determination of suitability for release on parole under section 3041(b) and, thus, guides the Board’s assessment of whether an indeterminate life inmate incarcerated for murder, like Petitioner, would pose “an unreasonable risk of danger to society if released from prison.” 15 Cal.Code Regs. § 2402(a). Circumstances tending to show unsuitability are derived from, among other things, the aggravated or “especially heinous, atrocious or cruel manner” in which the subject offense was committed (including that multiple victims were killed in the same incident, that the offense was carried out in a manner which was dispassionate and calculated and/or demonstrated an exceptionally callous disregard for human suffering, and that the motive for the crime was inexplicable or very trivial in relationship to the offense), as well as the inmate’s previous record of violence, unstable social history, lengthy history of severe mental problems related to the offense, and/or engagement in serious misconduct in prison or jail. 15 Cal.Code Regs. § 2402(c). Circumstances tending to show suitability include the inmate’s positive rehabilitative efforts while in prison and demonstration of remorse, as well as evidence indicating that the inmate committed the crime as the result of significant stress in his or her life, particularly where the stress had built over a longer period of time. 15 Cal.Code Regs. § 2402(d).

The foregoing and other listed circumstances “are set forth as general guidelines” for a particular Board panel, with “the importance attached to any circumstance or combination of circumstances in a particular case ... left to the judgment of the panel.” 15 CaLCode Regs. § 2402(c)-(d). In addition, a Board panel is not limited to consideration of only those factors which are listed in Board regulations, but is allowed to consider “[a]ll relevant, reliable information available” in reaching its decision. 15 Cal.Code Regs. § 2281(c)-(d).

In In re La/wrence, 44 Cal.4th 1181, 1212-29, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008), the California Supreme Court recently addressed the “relevant inquiry” for the Board and/or Governor to make in determining parole suitability in a given case, particularly with respect to the role the commitment offense itself may play in such an inquiry. As the state supreme court explained,

the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.

Id. at 1212, 82 Cal.Rptr.3d 169, 190 P.3d 535. Moreover,

the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor or mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.

Id. at 1214, 82 Cal.Rptr.3d 169, 190 P.3d 535 (emphasis in original); see also In re Shaputis, 44 Cal.4th 1241, 1259-60, 82 Cal.Rptr.3d 213,190 P.3d 573 (2008). A parole authority’s determination of whether an inmate poses a current danger is not dependent upon whether the inmate’s commitment offense is more or less egregious than other similar crimes. Lawrence, 44 Cal.4th at 1221, 82 Cal.Rptr.3d 169, 190 P.3d 535 (citing Dannenberg, 34 Cal.4th at 1083-84, 1095, 23 Cal.Rptr.3d 417, 104 P.3d 783). “Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense,” as reflected in the above-noted parole regulations. Id. Instead,

the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude.

Lawrence, 44 Cal.4th at 1221, 82 Cal.Rptr.3d 169, 190 P.3d 535 (citing Rosenkrantz, 29 Cal.4th at 682, 128 Cal.Rptr.2d 104, 59 P.3d 174). As a result, in some cases, an aggravated commitment offense may very well be predictive of “current dangerousness even decades after commission of the offense,” such as where “the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct post-incarceration, or has shown a lack of insight or remorse[.]” Id. at 1228, 82 Cal.Rptr.3d 169, 190 P.3d 535. See also 15 CaLCode Regs. § 2402(a) (“Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison”); Dannenberg, 34 Cal.4th at 1078, 23 Cal.Rptr.3d 417, 104 P.3d 783 (quoting id.).

Here, the state superior court found that the Board’s decision to deny parole was not a decision which was arbitrary or capricious or rendered in violation of due process because the Board had “considered all relevant factors,” its decision to deny parole reflected the Board’s determination that Petitioner “would still pose a public safety risk if released from prison,” and the denial itself was supported by “some evidence.” (Lodgment 4 at 119 (citations omitted).) As “some evidence” of parole unsuitability before the Board, the state superior court pointed to the aggravated nature of the commitment offense and two psychological evaluations indicating Petitioner’s risk of danger to society or threat to public safety if released on parole. (Id.)

In sum, this Court agrees with the reasoning and conclusion of the state superi- or court that the Board’s decision to deny parole does not reflect a due process violation' — -the gravity and nature of the commitment offense, along with the psychological evaluations, comprised “some evidence” before the Board which was probative of Petitioner’s then current danger to the public if she were to be released on parole at that time. Thus, the state superior court’s decision was a reasonable one in this regard and entitled to AEDPA deference.

With respect to the commitment offense, the record before the Board reflected Petitioner’s commission of two aggravated murders within the meaning of relevant California parole law, given not only the fact of the murders themselves and Petitioner’s motive for committing them against her own and very young children, but the cruel and dispassionate way in which they were accomplished. Specifically, the aggravated nature of the crimes is reflected by the fact that there were multiple murder victims in this case, Petitioner’s four-year-old and one-year-old sons. 15 Cal.Code Regs. § 2402(c)(1)(A). Petitioner’s actions against both young children reflected a callous disregard for their suffering in several ways, further reflecting an aggravated crime. 15 CaLCode Regs. § 2402(c)(1)(D). First, Petitioner was aware of each child struggling as she suffocated them, but did nothing to abate their suffering and, instead, chose to continue on her course to kill them. {See Lodgment 3 at 48.) Second, Petitioner’s actions were taken against two particularly vulnerable victims, in light of, among other things, their very young ages and their corresponding inability to physically defend themselves from their mother’s separate and determined attack against each of them. See, e.g., Small v. Sisto, 2008 WL 2561915, * 11-* 13, *15 (E.D.Cal., Jun. 25, 2008) (slip op.) (finding second degree murder of sixteen-month-old victim to be an aggravated offense within meaning of California parole law because of petitioner’s “brutal conduct in killing a helpless child,” which comprised “some evidence” to indicate that petitioner posed a current and unreasonable risk to public safety to support parole denial); Thompson v. Mendoza-Powers, 2008 WL 1776521, *4-*7 (E.D.Cal., Apr. 18, 2008) (slip op.) (finding second degree murder of two-month old child to be an aggravated offense within meaning of California parole law because, inter alia, victim was “defenseless and vulnerable” and had died as a result of cerebral edema occurring after skull fracture inflicted by the petitioner, which comprised “some evidence” to indicate that petitioner posed a current and unreasonable risk to public safety to support parole denial).

The record reflects that within the meaning of California parole law, Petitioner’s actions in committing the offenses reflected calculation and deliberation such that the second degree murders were aggravated ones. See 15 Cal.Code Regs. § 2402(c)(1)(C); see also, e.g., Shaputis, 44 Cal.4th at 1258-61, 82 Cal.Rptr.3d 213, 190 P.3d 573 (second degree murder was especially aggravated within meaning of California parole law because of evidence indicating intent and premeditation in its commission); Rosenkrantz, 29 Cal.4th at 678-79, 128 Cal.Rptr.2d 104, 59 P.3d 174 (aggravating circumstance for second degree murder within meaning of parole law was reflected by evidence indicating premeditation and deliberation in its commission). The manner in which Petitioner actually killed her sons was “calm[],” as reasonably characterized by the Board, and reflected a deliberate, systematic, and determined course by Petitioner to take the lives of both children. For instance, the record reflects that when Petitioner’s one-year-old son woke up during the course of his brother’s suffocation, Petitioner gave the one-year-old a bottle to quiet him, resumed and completed suffocating his brother, and then turned her attention back to and suffocated him. (See, e.g., Lodgment 2 at 9-10, Lodgment 3 at 41^42.) And, as Petitioner acknowledged at the parole hearing itself, although both boys had struggled during the course of their suffocation, Petitioner did not stop her actions and continued on her course to kill them both. (Lodgment 3 at 48.)

In addition, Petitioner’s asserted motive (she was distraught and felt that she (and, as a result, her children) had been abandoned in light of an argument with her former husband in which he had denigrated her sexual ability in comparison to that of his current girlfriend) was an inexplicable or trivial one in relationship to the offense of murdering her own children who, in turn, were passive victims in the additional sense that they had done nothing to “provoke” their mother’s actions, indicating further the aggravated nature of her crimes. See 15 CaLCode Regs. § 2402(c)(1)(E).

Thus, in the instant case, the deliberate nature of the commitment offense against multiple, vulnerable, and suffering victims and a motive which was inexplicable or trivial in relationship to the offense itself made both murders especially aggravated ones. More importantly, in the context of Petitioner’s “current demeanor or mental state,” Lawrence, 44 Cal.4th at 1214, 82 Cal.Rptr.3d 169, 190 P.3d 535, the aggravated nature of the offenses indicated that Petitioner posed a current risk to public safety. A connection between the commitment offense and Petitioner’s mental state at and around the time of the 2005 parole hearing was made explicit in Petitioner’s 2003 psychological report. (Lodgment 7 at 187.) Specifically, Petitioner’s 2003 psychological report tied the commitment offense and her motive for committing it to Petitioner’s present diagnosis of borderline personality disorder (a diagnosis later reiterated in the 2005 psychological report) and Petitioner’s current dangerousness. (Id.; see Lodgment 8 at 190, 192, 200.)

As noted, Petitioner’s motive for killing her young children-Petitioner’s response to an insulting comment from her former husband and her alleged and extreme interpretation of it as meaning that she, and in turn her children, had been “abandoned” and without anyone in the world-was inexplicable in that it resulted in her taking brutal and fatal action against two helpless children, acts comprising an aggravating circumstance under relevant parole law. 15 CaLCode Regs. § 2402(c)(1)(E). In its assessment of Petitioner’s dangerousness, Petitioner’s 2003 psychological report contained the evaluation that while Petitioner had “made significant strides in improving herself,” Petitioner still suffered from “issues of abandonment and rejection[ ],” which could “surface should [Petitioner] be placed into stressful situations.” (Lodgment 7 at 188; see also id. at 187 (describing Petitioner’s efforts at psychological therapy).) “And should these stressful situations be so overwhelming where [Petitioner] may feel hopeless,” the 2003 report continued, “this may lead to self-injurious behaviors,” which “in borderline personality disorder normally restricts to the patient in most cases. However, this inmate has demonstrated that she can extend her thought process to include those around her that she feels may be helpless should she not [be] living.” (Lodgment 7 at 188.) Noting that Petitioner “wanted to return to live with her mother” should Petitioner be granted release, the 2003 report stated that given the described condition of Petitioner’s mother and stepfather (referencing a medical condition “currently in remission” suffered by Petitioner’s mother, who took care of Petitioner’s then terminally ill stepfather), “one can see the same similarities between the conditions of her original crime and her parole plans.” (Id.)

Thus, the 2003 report found that Petitioner’s current mental state stemming from her diagnosis of a borderline personality disorder and the facts of her earlier commitment offense and her motive for committing it (which also comprised an aggravating factor under state parole law) was a specific predictor of Petitioner’s current dangerousness, even in an environment to which Petitioner hoped to obtain parole. (Lodgment 7 at 188.) Some two years later, and at the time of the subject parole hearing, Petitioner’s 2005 report also reflected Petitioner’s current diagnosis of borderline personality disorder and Petitioner’s same hope of moving in with her mother, with the latter circumstance the specific contextual example of risk of dangerousness that was noted in the earlier report. (Lodgment 8 at 189-90, 192, 200.)

The murders may have occurred almost 20 years before the subject hearing but they continued to have probative and predictive value on the issue of Petitioner’s current dangerousness, in light of their aggravated manner of commission and when considered in conjunction with evidence of Petitioner’s current diagnosis of borderline personality disorder (characterized in the 2005 report as a “life long mental disorder” (Lodgment 8 at 190,192)) and the limits to Petitioner’s psychological rehabilitation. Thus, although Petitioner contends otherwise (particularly in light of how long ago the crimes occurred and her efforts at psychological therapy and longstanding “clean” prison disciplinary history) (see, e.g., Petition Mem. at 12-17, 31-32), a nexus between the commitment offense itself and her current parole risk was demonstrated via the entire record before the Board. Therefore, the commitment offense, when considered with the psychological reports’ assessments thereto, comprised “some evidence” to support the Board’s assessment that Petitioner posed a then current risk of dangerousness if released on parole. See, e.g., Colon v. Dawson, 2008 WL 2620747, *5-*6 (E.D.Cal., Jul. 3, 2008) (slip op.), adopted, 2008 WL 3050869 (E.D.Cal., Aug. 5, 2008) (slip op.) (psychological report noting “moderately low to moderate risk of future violence if released from prison” was linked to evaluating psychologist’s concern regarding the petitioner’s potential risk for relapse into alcohol abuse; “one of the primary factors in Petitioner’s offense was the fact that he was under the influence of alcohol” and, thus, psychologist’s report was among evidentiary items comprising “some evidence” to support Board’s decision to deny parole); Elkins v. Brown, 2006 WL 3782892, *5-*8 (N.D.Cal., Dec. 21, 2006) (slip op.) (among “some evidence” supporting Board’s determination that inmate was not suitable for parole was “mixed” psychologist’s report which had concluded that inmate was at some, although not high, risk for relapse into substance abuse, and that substance abuse had “played a significant part in the killing” for which inmate was incarcerated).

Moreover, the 2003 and 2005 psychological reports also contained assessments of Petitioner’s present mental state generally, which further comprised “some evidence” that Petitioner was not suitable for parole release. The 2005 report itself found that Petitioner posed a “low to moderate risk” of dangerousness if she were to be released on parole and indicated also that Petitioner presented an elevated risk for violence as a result of her borderline personality disorder diagnosis; and yet, the 2005 report somewhat unclearly indicated support for Petitioner’s release (Lodgment 8 at 189-95, 200); the 2003 report noted the psychiatrist’s evaluation that although Petitioner had “made significant strides in improving herself, I do not believe she has achieved the results necessary for her to maintain some level of stability should she be released into the community.” (Lodgment 7 at 186-88.) A determination in a psychologist’s report that an inmate may present a low to moderate risk of violence to the community if released constitutes “some evidence” supporting a denial of parole, even where such a determination is contained in a report that also may find a low risk of violence by a different testing standard or other positive factors. See, e.g., Elkins, 2006 WL 3782892 at *5-*8 (among “some evidence” supporting Board’s determination that inmate was not suitable for parole was “mixed” or “guarded” nature of a psychologist’s report which, while generally positive, expressed concern regarding inmate’s potential for future substance abuse, where inmate’s abuse of drugs had played a significant part in subject murder, and, although one measure of probability for violence was rated as low, another measure rated him as at low to medium risk).

And, this is not a case where the record reflects even one, let alone “several consistent psychiatric evaluations [which] have found petitioner no longer suffers from any psychiatric problems” or poses no danger to society should Petitioner be released on parole; thus, the record reflects no uniformly and consistently positive findings over a prolonged period of time that Petitioner was psychologically sound and would pose no danger to society if released despite the commission of an aggravated commitment offense years before. Lawrence, 44 Cal.4th at 1223-24, 82 Cal.Rptr.3d 169, 190 P.3d 535. Indeed, even looking to the last psychological report alone, the report itself was mixed, at best, and contained the assessment that Petitioner still posed a “low to moderate risk” of danger to public safety should she be released.

Thus, in light of the aggravated nature of Petitioner’s crimes and the assessments set forth in the 2005 and 2003 psychological reports, there was “some evidence” before the Board to support its determination that Petitioner was not suitable for parole release because she would pose a then current and unreasonable risk of dangerousness to society if released at that time. See, e.g., Sass, 461 F.3d at 1129 (where Board based its finding that a state prisoner “was unsuitable for parole on the gravity of his convicted offenses in combination with his prior offenses,” such “elements amount to some evidence to support the [BPT’s] determination”); Rosas v. Nielsen, 428 F.3d 1229, 1232-33 (9th Cir.2005) (“circumstances of [inmate’s] crime, along with his psychiatric reports, constituted evidence with sufficient reliability to support the Board’s denial of parole”); Biggs, 334 F.3d at 916; Jancsek v. Oregon Board of Parole, 833 F.2d 1389, 1390-91 (9th Cir.1987).

This result is not altered by Petitioner’s contention that there was other evidence before the Board which was supportive of Petitioner’s release on parole, such as her “clean” prison disciplinary history for many years and her participation in psychological programming. (See Petition Mem. at 8-17, 31-32; see also Lodgment 3 at 80-87.) On subsequent judicial review of a parole board’s decision to deny parole, “[t]o determine whether the some evidence standard is met ‘does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached’ ” by a state parole board. Sass, 461 F.3d at 1128 (quoting Hill, 472 U.S. at 455-56, 105 S.Ct. 2768). Thus, application of the “some evidence” standard does not call for a reviewing court to reweigh all of the evidence which may have been presented to the Board during a subject parole hearing, and calls for a reviewing court to determine only whether “some evidence” supported the panel’s decision. Id. As discussed herein, the commitment offense itself and Petitioner’s psychological evaluations comprised such evidence within the “some evidence” standard. Thus, on subsequent judicial review, it is irrelevant whether other evidence was presented to the Board which could be viewed as positive and “favoring” a parole grant, as Petitioner asserts in this case. Id. And, to the extent that Petitioner may assert that the Board did not give her any individualized consideration, the record belies that assertion. (See Lodgment 3 at 26-117.) The record shows that the Board simply determined that the evidence tending to show unsuitability outweighed any evidence which may have tended to show suitability. (Id. at 108-17.)

Petitioner’s contention that her right to due process has been violated by the “interminable preclusion of ... parole based solely on [Petitioner’s] commitment of the second-degree murders” in this case also does not present a basis for overturning her parole denial. (See Petition Mem. at 18-32.) Petitioner argues that, “[b]ecause neither her offense facts nor parole suitability otherwise can improve, and because she has served the maximum prison term prescribed for the particular facts of her offenses, denial of parole based on those unchangeable facts has converted her prison term to life without any possibility of parole.” (Id.)

Apart from failing to establish the specific bases for Petitioner’s earlier parole denials, Petitioner points to no United States Supreme Court decision which finds that even repeated reliance upon the same or similar evidentiary factors by a state parole board in denying parole, derived from application of relevant provisions of state law (which itself does not bar repeated reliance on such factors), demonstrates a violation of due process or, indeed, prevents such factors from serving as “some evidence” that parole should again be denied in a particular case, even where an inmate’s minimum eligible parole date has passed, an inmate has already served the determinate portion of her life sentence, and/or the inmate has been denied parole numerous times before. See Sass, 461 F.3d at 1125-26, 1129 (noting that, “[u]nder AEDPA it is not [a federal reviewing court’s] function to speculate about how future parole hearings could proceed” with respect to possibility that Board could continue to rely “in the future on an unchanging factor” and that “evidence of ... prior offenses and the gravity of [state prisoner’s] convicted offenses constitute some evidence to support the [Board’s] decision” to deny parole; in the case before it, finding “some evidence” supported Board’s repeated 1999 and 2000 decisions to deny parole based, each time, on same factors of gravity of offense and prior criminal record).

However, the Court recognizes that dicta set forth by the Ninth Circuit in 2003 in Biggs v. Terhune and subsequent decisions has stated that in the face of an inmate’s continuing demonstration of exemplary behavior and rehabilitation in prison, a parole authority’s persistent reliance on an unchanging or immutable factor such as the commitment offense itself and conduct prior to imprisonment to deny parole eventually could result in a due process violation. See Biggs, 334 F.3d at 916-17; see also Irons, 505 F.3d at 853; Sass, 461 F.3d at 1129. In Irons, the Ninth Circuit noted also “that in all the cases in which [the Ninth Circuit has] held that a parole board’s decision to deem a prisoner unsuitable for parole solely on the basis of his commitment offense comports with due process, the decision was made before the inmate had served the minimum number of years required by his sentence.” 505 F.3d at 853.

In this case, Petitioner appears to have reached her minimum eligible parole date and also had served the determinate portion of her 15-years-to-life sentence at the time of the 2005 parole hearing; while Petitioner asserts, the Board had deemed her unsuitable for parole at four prior hearings, in reaching its decision in the hearing that is the focus of this case, the Board did not rely solely on “unchanging factors” to deny parole but looked also to whether the record as a whole reflected reliable evidence of Petitioner’s current rehabilitation and suitability for parole. (Lodgment 3 at 108-17.) In this respect, among other things, the Board looked to Petitioner’s contemporaneous psychological evaluations and her risk for dangerousness should she be paroled (see id.)-, as discussed above, those evaluations, in conjunction with the crime and generally, comprised “some evidence” to support the parole denial. Thus, even if the Biggs dicta were otherwise persuasive or authoritative, it would be inapposite to indicate a due process violation