895 F.2d 973
58 Ed. Law Rep. 918
BURKE COUNTY BOARD OF EDUCATION, Plaintiff-Appellee,v.Christian Lee DENTON, By and Through his parents and legalguardian;  Lee Edward DENTON, Defendants-Appellants.Carolyn DENTON, Defendant,v.Phillips A. CRAIG, State Superintendent of PublicInstruction, State of North Carolina;  Haworth,Howard, Chairman, State Board ofEducation, State of NorthCarolina, ThirdParty Plaintiffs.
No. 88-2184.
United States Court of Appeals,Fourth Circuit.
Argued Nov. 2, 1989.Decided Feb. 9, 1990.

David B. Puryear, Jr.  (Booth, Harrington, Johns & Campbell, Greensboro, N.C., Roger Manus, Carolina Legal Assistance, on brief) for defendants-appellants.
Ann L. Majestic (Allison Brown Schafer, Tharrington, Smith & Hargrove, Raleigh, N.C., on brief) for plaintiff-appellee.
Before RUSSELL and PHILLIPS, Circuit Judges, and FOX, United States District Judge for the Eastern District of North Carolina, sitting by designation.
PHILLIPS, Circuit Judge:

1
Christian Lee Denton (Chris), by and through his parent and legal guardian, Lee Edward Denton, appeals from the judgment of the district court affirming, with minor modifications, the educational program proposed for Chris by the Burke County, North Carolina, Board of Education (Board).  The Dentons had initiated administrative review procedures under the Education of the Handicapped Act (EHA), 20 U.S.C. Secs. 1400-1485, and the parallel state law, N.C.Gen.Stat. Secs. 115C-106 to 115C-145 (1987), to contest the special education program proposed by the Board.  A local hearing officer concluded that the program proposed was appropriate and in the least restrictive environment.  Upon appeal by the Dentons, a state review officer found that the proposed program did not meet state and federal law standards.  The Board then brought this action in district court as an aggrieved party under the EHA, and the court rejected the review officer's conclusions and reinstated the hearing officer's decision in its entirety.  We agree with the district court that the educational program proposed by the Board, as modified by the local hearing officer, meets the requirements of federal and state law and therefore affirm.

2
* Chris, now nineteen years old, is autistic and moderately mentally handicapped.  He has the severe problems most autistic people face communicating and controlling himself.  Until reaching the age of eighteen, he was included in the "Willie M" class of individuals in North Carolina.1   These individuals are seriously emotionally, neurogically, or mentally handicapped and exhibit violent or assaultive behavior.  Chris cannot manage his own behavior;  his behavior at all times must be managed by others.

3
Because of his aggressive behavior, and upon the recommendation of a Board administrative committee, the Dentons placed Chris in the Triad Home for Autistic Individuals in High Point, North Carolina.  While living at the Triad Home from 1984-1987, Chris received educational services at the Gateway Education Center in Greensboro.  During this time, highly structured programs of educational services and complementary behavior management programs were utilized at both Triad and Gateway, and were successful in promoting Chris' learning and reducing the incidents of aggressive behavior.  Both the residential and educational services were provided at public expense.2

4
In late 1986, the Dentons began planning in earnest to attain their goal of returning Chris to the family home.  Chris also would be entering his last year of eligibility for Willie M funds, and a new source of funds would be required to provide for the total care he needs.  Board members were not included in this planning process and were not informed until June 1987 that Chris would be returning to Burke County and their jurisdiction.

5
In June 1987, the Dentons presented a plan developed by representatives of TEACCH,3 a division of the University of North Carolina Psychiatry Department, and Chris' former teacher at Gateway.  The proposed plan (PUSH plan), designed to replicate the successful Gateway-Triad plan as closely as possible and coordinated by a private contractor, called for Chris to enroll at the Western Carolina Center, a facility operated by the North Carolina Department of Human Resources, for day educational services.  He would return home at night and for weekends.  Although Chris would not be enrolled in its schools, the Board was asked to fund a one-on-one day program aide, transportation to the Center, and one-half the cost of a Direct Care Coordinator, whose function was to provide and supervise habilitation services in the Denton home.  The Department of Human Resources agreed to fund the other half of the Coordinator and additional home care costs, apparently as part of the Willie M program.  The Board agreed to fund the aide and the transportation costs as educational services costs, but objected to the funding of a position that they asserted primarily involved controlling Chris' behavior.

6
The Board's efforts to develop an individualized education program (IEP) for Chris as required by the EHA, see 20 U.S.C. Secs. 1401(19);  id. Sec. 1414(a)(5);  see also N.C.Gen.Stat. Sec. 115C-113(f) (1987), were hampered by a lack of up-to-date evaluations from Gateway.  The Board offered a temporary placement plan while the IEP was being developed, but the Dentons refused the offer.  The Board did not provide notice to the Dentons or develop the IEP within the time periods provided under North Carolina law,4 see id. Sec. 115C-113(b), (c),5 but did present an IEP just four days after receiving Chris' evaluations.

7
The IEP called for day enrollment at a local school with a program closely following the Gateway program, including provision of a one-on-one aide.  The physical environment would be the same, pre-vocational and vocational training would be provided, and the successful behavior management program would be replicated.  The Board was even willing to accept the PUSH plan IEP for implementation in future years, but the Dentons refused to agree to this approach because the total plan did not include in-home care.  Recognizing that Willie M funding for residential services would soon be lost, the Dentons adopted the position that the Board was required under federal and state law to provide all the in-home services, now asserted to be educational, for what amounted to 24 hour a day, 365 days a year care.6

8
The Dentons reasserted their right to a "due process" hearing under the EHA, see 20 U.S.C. Sec. 1415(b)(2);  see also N.C.Gen.Stat. Sec. 115C-116 (1987)7, which had been stayed by a local hearing officer until Chris' evaluations were completed and a new IEP proposed by the Board, after they rejected the Board's IEP.  The hearing officer found as an essential fact that Chris cannot manage his own behavior.  In addition, consistency is a key consideration in controlling Chris' behavior:  "The same behavior management program must be used at all times, in all environments, to control the child's behavior."    Joint Appendix (J.A.) I, at 32, para. 48.  "Self-control is a goal for the child, although it is very likely that it will never be attained."    Id., para. 47.

9
The hearing officer's further findings endorsed the IEP proposed by the Board.  The Board offered placement in one of its schools with some opportunity to interact with non-handicapped students (mainstreaming) and a program consistent with the successful Gateway program.  The educational program needed to be coordinated with the home environment so that the same behavior management approach, including the critically important aversion therapy which the Western Carolina Center had refused to implement, would be utilized in all aspects of Chris' life.  Like the Gateway program that successfully promoted Chris' learning skills, the Board's IEP did not call for educational services or residential training beyond the regular school day.

10
In his critical "conclusion of law," the hearing officer distinguished the educational program from the behavior management program for Chris.

11
The behavior management program maintains and controls the behavior of the child so that other activities, educational as well as non-educational, can take place and the child does not become a threat to the safety of himself or others.  Educational programs enable the child to learn new skills and concepts.  When new behavior management techniques are attempted for the purpose of advancing the child to less intensive external controls, such activities are part of an educational program.  It does not necessarily follow that the use of these new control techniques, and the resultant reinforcement of learning, takes place only in an educational setting.  To hold otherwise is to specify that everything that is done to or for an individual is an educational activity, a premise that the hearing officer cannot accept as the intent of federal and state law governing the provision of education to children with special needs.

12
Id. at 36, para. 14.

13
The hearing officer therefore ruled that Chris does not need a residential program of education or an educational program 24 hours a day or 365 days a year in order to achieve educational benefits.  He saw as the critical requirement the need to coordinate the behavior management program at school and in the home, and for this reason he ordered the Board to set up a team approach, as used at Gateway and Triad, to coordinate home and school environments, and procedures to facilitate exchange of information.  With these modifications, and an additional requirement that Chris be provided educational services during the summer school term, the hearing officer endorsed the Board's IEP as appropriate and in the least restrictive environment.  Although the hearing officer found that the Board had not met the procedural requirements of federal and state law, he ruled that Chris was not entitled to compensatory special education because the Board's faults had not deprived him of any educational benefits.

14
The Dentons appealed the hearing officer's decision and a state review officer was appointed to independently review the administrative record.  See N.C.Gen.Stat. Sec. 115C-116(b1) (1987).  The review officer accepted the facts as found by the hearing officer, but he drew the exact opposite legal conclusion that the Board's IEP was not adequate under state and federal law.  He reasoned that a person with Chris' handicap "cannot progress educationally unless his total environment, both educational and residential, [is] highly structured and aimed at promoting sameness throughout his daily experience."    J.A. I, at 22.  The Board's IEP was inadequate "because it does not provide for services beyond the normal school day and beyond the normal school term....  Instruction beyond the normal school day and beyond the normal school year are necessary in order for [Chris] to achieve educational benefits to the degree commensurate with his potential."    Id.  Chris needed "a residential program of special education and related supportive services," and the least restrictive environment for provision of the residential program was the Denton home.  Id. at 23.  He evaluated the evidence as showing that the instruction needed to continue through most of the hours Chris is awake, at least five days a week.  Id.8  The review officer also awarded Chris 106 days of compensatory special education on account of the Board's procedural defaults.

15
The Board then brought this civil action as a "party aggrieved" under 20 U.S.C. Sec. 1415(e)(2);  the Dentons counterclaimed seeking 365-day services during Chris' waking hours and raising related claims under Sec. 504 of the Rehabilitation Act of 1973, see 29 U.S.C. Sec. 794, and 42 U.S.C. Sec. 1983.  The district court received additional evidence, and after reviewing the entire administrative record, reinstated the hearing officer's decision.  The court rejected as contrary to the evidence and the law the review officer's conclusion that the Board must establish a residential special education program in the Dentons' home that provides reinforcing behavior management supervision in order to meet the requirements of federal and state law.

16
Additional facts found by the court were relied upon to support its conclusions.  Specifically, the court found that in December 1987 the Dentons had removed Chris from the Triad Home and brought him home, having earlier decided not to enroll Chris at Gateway for the 1987-88 school year, and that, at the Dentons' request, the Board had arranged emergency placement in a local school and implemented its original IEP.  The court further found that under this regime Chris continued to make good progress at school despite the fact that aides employed to be with Chris when he was at home were not consistently following the proven behavior management techniques.  Chris and the in-home aide have their own separate quarters in the Denton home and contact with the family is limited.  The aide's principal responsibility is to provide basic care for Chris, helping him bathe, dress, and eat.  The court found that the aides spent much of the time entertaining Chris in the home or by taking him shopping, to the park, or out to eat.  The only work tasks Chris attempted at home were ones that he had already performed at school.  The aversion therapy and other behavior management techniques were not followed outside the school.

17
The court also summarily rejected the Dentons' Sec. 504 and Sec. 1983 claims, both of which were apparently premised on an argument that the Board discriminated against Chris and deprived him of a federal law right to full educational benefits by adopting its IEP.  In addition, the court agreed with the hearing officer, and disagreed with the review officer, in finding that the Board's violation of the procedural notice requirements under state and federal law did not deprive Chris of any educational benefits.  The Dentons were at least partially responsible for any delays as they intentionally avoided informing the Board of their plans until after they were complete, and they voluntarily removed Chris from Gateway, where he could have been receiving educational services during the administrative process.

18
The Dentons then took this appeal.

II

19
Although Chris Denton's case has now been litigated for over two years and the record on appeal is voluminous, the range of dispute between the parties, as the district court recognized, is actually quite narrow.  There is no dispute that Chris is a handicapped child and has a right under federal and state law to a "free appropriate public education."    See 20 U.S.C. Sec. 1401(1);  id. Sec. 1412(1);  N.C.Gen.Stat. Sec. 115C-109 (1987);  id. Sec. 115C-111.  The record also makes clear that Chris cannot function by himself, at least at this time, and that he needs close supervision both at school and at home.  Though initially dissatisfied with the in-school program proposed by the Board, the Dentons now seem to accept the Board's IEP as implemented at school.  The remaining question, then, is whether federal or state law requires the Board to fund the habilitative services for Chris in the Denton home.9   We hold, affirming the district court, that neither the EHA nor North Carolina's special education law requires the Board to fund these habilitative services.

A.

20
Congress made clear its purpose when it enacted the EHA.

21
It is the purpose of this chapter to assure that all handicapped children have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children.

22
20 U.S.C. Sec. 1400(c).  Free appropriate public education means "special education," defined as "specially designed instruction ... to meet the unique needs of a handicapped child, including ... home instruction," id. Sec. 1401(16)10, and "related services," defined as "transportation, and such developmental, corrective, and other supportive services ... as may be required to assist a handicapped child to benefit from special education," id. Sec. 1401(17).11   See id. Sec. 1401(18).12

23
The Supreme Court first considered the reach of the EHA, and specifically interpreted the meaning of the "free appropriate public education" requirement in Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).  The Court emphasized the language of the statute itself in holding that a state satisfies the requirement by "providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."    Id. at 203, 102 S.Ct. at 3049.    Congress did not intend that every special education program necessary to maximize each handicapped child's potential be provided.  Id. at 199, 102 S.Ct. at 3047.    Rather, the IEP, recognized as the "modus operandi of the Act," Burlington School Comm. v. Massachusetts Dep't of Educ., 471 U.S. 359, 368, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385 (1985), as proposed by the local education agency must be "reasonably calculated to enable the child to receive educational benefits."    Rowley, 458 U.S. at 207, 102 S.Ct. at 3051.

24
The question in this case is, then, whether the Board's IEP, which does not include a home instruction component, is reasonably calculated to enable Chris to receive educational benefits.  Congress recognized that in some instances home instruction or residential placement would be required for the handicapped child to benefit educationally.  See 20 U.S.C. Sec. 1401(16);  id. Sec. 1413(a)(4)(B);  34 C.F.R. Secs. 300.302, 300.551.  If the educational benefits which can be provided through residential care are essential for the child to make any educational progress at all, then residential care is required under the EHA.  See Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir.1983);  see also Matthews v. Davis, 742 F.2d 825, 829 (4th Cir.1984).  Where medical, social, or emotional problems are intertwined with educational problems, courts recognize that the local education agency must fund residential programs if the requirements of the EHA and Rowley are to be met.  See Kruelle v. New Castle County School Dist., 642 F.2d 687, 693-94 (3d Cir.1981);  Vander Malle v. Ambach, 667 F.Supp. 1015, 1039 (S.D.N.Y.1987).  The determination whether services beyond the regular school day are essential for the child to receive any educational benefit is necessarily fact and case specific.  See Kruelle, 642 F.2d at 692-93;  Drew P. v. Clarke County School Dist., 676 F.Supp. 1559, 1566 (M.D.Ga.1987), aff'd, 877 F.2d 927 (11th Cir.1989).

25
On the other hand, "[i]t follows from Rowley that the Act does not authorize residential care merely to enhance an otherwise sufficient day program."    Abrahamson, 701 F.2d at 227 (emphasis in original).  If residential placement is necessitated by medical, social, or emotional problems that are segregable from the learning process, then the local education agency need not fund the residential placement.  See McKenzie v. Smith, 771 F.2d 1527, 1534 (D.C.Cir.1985) (citing Kruelle, 642 F.2d at 693).    And Rowley makes clear that the EHA requires only that the child be able to benefit from the instruction that she receives, not that she be able to maximize her potential commensurate with the opportunity provided nonhandicapped children.  458 U.S. at 198, 102 S.Ct. at 3046.

26
The district court found that since Chris returned home and enrolled in a Burke County school, he has continued to make educational progress despite the failure of the home care aides to follow rigorously the successful behavior management program.  This finding is not clearly erroneous, see Matthews v. Davis, 742 F.2d at 831;  Fed.R.Civ.P. 52(a), and undermines the Dentons' factual premise that an absolutely consistent in-home behavior management program is required for Chris to make educational progress and is therefore an educational expense.  The evidence did not support the Dentons' claim that Chris needs an "educational" program for all his waking hours, 365 days a year or even 5 days a week.  Cf. Drew P. v. Clarke County School Dist., 676 F.Supp. at 1565 (24-hour care not needed for every autistic child to make educational progress).

27
The evidence showed that while Chris was attending a local school which implemented the Board's IEP, his episodes of aggression decreased and his task performance improved.  Chris was able to spend more time on individual tasks and more total time during work sessions.  He works on more complex and a wider variety of tasks with an improved error rate.  His progress is closely monitored as school personnel continue to meet and work on more of the specific goals in Chris' IEP.  The only work tasks Chris attempted at home were ones that he had already performed at school.  See Matthews v. Davis, 742 F.2d at 830 (custodial care not required when reinforcing functional applications at home are sufficient, along with continued training and drills at school, to maintain child's skills).

28
The Dentons do recognize that the dispute in this case is narrowly focused, but they dispute both the scope of the district court's review and the court's specific factual and legal conclusions.  The EHA provides that "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."    20 U.S.C. Sec. 1415(e)(2).  The reviewing court, in receiving the record of the state administrative proceedings, shall give to those proceedings "due weight."    Rowley, 458 U.S. at 206, 102 S.Ct. at 3051.    The court thus makes a bounded, independent decision--"bounded by the administrative record and additional evidence, and independent by virtue of being based on a preponderance of the evidence before the court."    Town of Burlington v. Massachusetts Dep't of Educ.  (Burlington II), 736 F.2d 773, 791 (1st Cir.1984), aff'd sub nom.  Burlington School Comm. v. Massachusetts Dep't of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).  The court has discretion to give the administrative findings proper weight, with the concomitant obligation to consider those findings carefully and respond to the administrative resolution of the issues.  Id. at 792.

29
The district court carefully reviewed the entire record and after independent review concluded that the local hearing officer's decision should be reinstated.  The hearing officer's findings of fact were accepted even by the review officer, and the court agreed that the findings were supported by the evidence.  The court also admitted and considered additional evidence that was inconsistent with the review officer's underlying premise that Chris could not make educational progress without complete consistency in the behavior management programs employed at home and at school.  The court's opinion shows that it did consider the review officer's conclusions along with those of the hearing officer, but found the review officer's conclusions contrary to the evidence and the law.

30
The essence of the Dentons' argument that due weight was not given to the review officer's conclusions is simply that the court rejected those conclusions.  They assert that the decision to which deference is due is the review officer's decision, as opposed to the hearing officer's decision, citing School Board of Prince William County v. Malone, 762 F.2d 1210 (4th Cir.1985).  In Malone, however, the local and state hearing officers agreed, and it was the decision of the hearing officers, not the school board's decision, to which deference was due.  762 F.2d at 1217.    Under Sec. 1415(e) and Malone, the Dentons' argument that deference was due only to the review officer's conclusions is simply incorrect.

31
The Dentons also assert that the district court inappropriately considered institutional placement for Chris and was improperly influenced by the financial implications of the case.  The Dentons argue that the court's conclusion that in-home services are not educational services was predetermined by the court's consideration of institutional (i.e., non-educational) placement.  The court's opinion gives no indication of predetermination, but rather reflects careful consideration of the facts it found.  The Dentons' contention that the court's decision was improperly influenced by financial considerations is similarly flawed.  The court noted that financial considerations are not a deciding factor in a case under the EHA.  See generally, Bartlett, The Role of Cost in Educational Decisionmaking for the Handicapped Child, 48 Law & Contemp. Probs. 7 (Spring 1985) (discussing different approaches courts have taken in dealing with costs of education for handicapped children).  The court's brief mention of the costs of the Board's program and the likely costs of the program sought by the Dentons is simply dicta consistent with its fundamental finding that the services sought are not required for Chris to benefit educationally.

32
The Dentons then attack the court's factual findings.  They argue that they should not be "penalized" for failing to implement at home the successful behavior management program;  the failure to implement the program only demonstrates the need for services from the Board.  They correctly note that no evidence supports the conclusion that Chris could continue to make educational progress without any one-on-one aide services in the home.  But these arguments do not respond to the court's critical factual finding that Chris has continued to make educational progress under the Board's in-school program and without in-home special education and behavior management instruction.

33
We also believe, contrary to the Dentons' position, that the district court reasonably concluded that the Board's procedural failure did not deprive Chris of educational benefits that would entitle him to extra education days.13   The Dentons voluntarily removed him from Gateway, where he could have continued his education, and refused the Board's offer of a temporary placement while the administrative hearings were being held.  The Board's IEP was later implemented when the Dentons requested emergency placement for Chris, and, as we have discussed, he showed significant progress under the Board's plan.  The Dentons certainly have no strong equitable argument for invoking the court's discretion to award appropriate relief under Sec. 1415(e)(2) when they intentionally did not inform the Board until practically the last possible moment that Chris would be returning to its jurisdiction.  Although the Rowley Court emphasized that a reviewing court must ensure that the state has complied with the procedures set forth in the EHA, 458 U.S. at 206, the procedural faults committed by the Board in this case did not cause Chris to lose any educational opportunity.  Cf. Hall v. Vance County Bd. of Educ., 774 F.2d 629, 635 (4th Cir.1985) (school board's consistent failure to provide notice and inform dyslexic child's parents of procedural rights is adequate ground for finding that board failed to provide child with free appropriate public education).

34
The Dentons ultimately fail to establish "the link between the supportive service or educational placement and the child's learning needs."    Kruelle, 642 F.2d at 694.    Chris has benefitted educationally from the instruction provided under the Board's IEP.  See Rowley, 458 U.S. at 203, 102 S.Ct. at 3049.    Federal law requires no more.

B.

35
The Dentons' argument that North Carolina law, if not federal law, requires that the provision of home behavior management services be deemed educational fails as well.  As they point out, a federal court must determine whether an IEP meets the requirements of state law if the state requires a level of substantive benefit greater than that required under federal law.  See David D. v. Dartmouth School Comm., 775 F.2d 411, 417-20 (1st Cir.1985);  20 U.S.C. Sec. 1401(18)(B).  North Carolina apparently does require more than the EHA.  The special education program must provide the child with an equal opportunity to learn if that is reasonably possible, ensuring that the child has an opportunity to reach her full potential commensurate with the opportunity given other children.  See Harrell v. Wilson County Schools, 58 N.C.App. 260, 293 S.E.2d 687, 690 (1987) (citing Rowley, 458 U.S. at 215, 102 S.Ct. at 3055 (White, J., dissenting));  see also N.C.Gen.Stat. Sec. 115C-106(a) (1987) (policy of the state "is to ensure every child a fair and full opportunity to reach his full potential").

36
But North Carolina law still recognizes the difference between special education services and habilitation services.  Although the state statutory definitions of "special education" and "related services" are more expansive than the EHA definitions of those terms, the services the Dentons seek do not fall within the definitions.  See N.C.Gen.Stat. Sec. 115C-108 (1987).  Special education is defined to include certain services categorized as related services under federal law;  related services includes "school social work services, parent counseling and training, providing parents with information about child development and assisting parents in understanding the special needs of their child."    Id.  The district court's factual findings compel the conclusion that the in-home services sought by the Dentons are not the kind of services which must be provided, under federal or North Carolina law, by the local education agency.

37
Habilitation plans, which are developed by the Department of Human Resources for use in its facilities, are separate from the IEP, which is normally developed by the local education agency.  The plans are to be "coordinated, integrated, and internally consistent," id. Sec. 115C-113(f), but the statute clearly contemplates a distinction between the kinds of services which might be provided to handicapped "special needs" children.  The Dentons recently obtained a license to operate their home as a residential care facility under state laws governing Department of Human Resource programs, see id. Sec. 122C-3(14)(b) (1989), further confirming the appropriate categorization of the home care services sought for Chris as habilitation, not education.  Harrell seems to require that the local education agency provide educational services which will enhance a handicapped child's ability to reach her potential;  it does not mandate expansive interpretation of what the statute contemplates as an educational service.

38
The Dentons also contend that the district court erred in applying the federal standard of review to those parts of the review officer's decision based on state law.  The EHA mandates that the district court independently review the administrative record and base its decision on a preponderance of the evidence.  20 U.S.C. Sec. 1415(e)(2).  No distinction is made between federal and pendent state claims if the claims are brought in federal court.  Although the North Carolina Administrative Procedure Act limits a state court reviewing an agency decision to substantial evidence review, see N.C.Gen.Stat. Sec. 150B-51(b)(5) (1987), judicial review of special education claims is substantial evidence review unless "pertinent federal law or regulation specifies otherwise."    Id. Sec. 115C-116(b1).  The district court properly followed federal procedural law in reviewing independently both the federal and state law claims.14

III

39
We agree with the district court that the Dentons' claims under Sec. 504 of the Rehabilitation Act of 1973 and under 42 U.S.C. Sec. 1983 are without merit.  Section 504 provides, in pertinent part,

40
No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

41
29 U.S.C. Sec. 794.  The Supreme Court has emphasized that the purpose of the Rehabilitation Act is to prevent discrimination against the handicapped;  it is not intended to impose an affirmative obligation on all recipients of federal funds.  See Smith v. Robinson, 468 U.S. 992, 1016, 104 S.Ct. 3457, 3470, 82 L.Ed.2d 746 (1984);  Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979).  The Board did not discriminate against Chris in its provision of educational services.  See also St. Louis Dev. Disabilities Treatment Center Parents Ass'n v. Mallory, 591 F.Supp. 1416, 1471 (W.D.Mo.1984) (when Sec. 504 claim concerns subject covered by EHA, compliance with EHA satisfies requirements of Sec. 504), aff'd, 767 F.2d 518 (8th Cir.1985);  34 C.F.R. Sec. 104.33(b)(2) (implementation of IEP meeting requirements of EHA satisfies Rehabilitation Act regulations).  Because we have rejected the Dentons' claims under the EHA and the Rehabilitation Act, and because we perceive no other substantive basis for relief,15 the Dentons' claim under Sec. 1983 also fails.

IV

42
We therefore conclude that the district court did not err in holding that the Board's plan, as modified by the local hearing officer, provided Chris Denton with the "free appropriate public education" mandated by federal and state law.  The court gave due weight to the findings and conclusions of the local hearing officer and the state review officer, considered the additional evidence before it, and granted appropriate relief under the EHA.  The judgment of the district court is affirmed.

43
AFFIRMED.

1
 See Willie M. v. Hunt, No. CC-79-294 (W.D.N.C.1980) (consent decree);  see also Willie M. v. Hunt, 657 F.2d 55 (4th Cir.1981)

2
 Because Chris resided and attended school in Guilford County, North Carolina, the Guilford County Board of Education, rather than the Burke County Board, was responsible for funding Chris' educational program at Gateway Center.  The Triad Home is a facility operated and funded by the North Carolina Department of Human Resources

3
 TEACCH is an acronym for Treatment and Education of Autistic and Communications-Handicapped Children

4
 Under 20 U.S.C. Sec. 1412(5)(A), each state qualifying for federal assistance must establish procedural safeguards as required by Sec. 1415.  Prior written notice must be given a reasonable time before any change in educational placement of a handicapped child.  See id. Sec. 1415(b)(1)(C);  34 C.F.R. Sec. 300.504(a).  The regulations also provide that a meeting to develop an IEP must be held within 30 days of a determination that a child needs special education and related services, and that the IEP must be implemented as soon as possible following the meeting or meetings.  Id. Secs. 300.342(b)(2), 300.343(c)

5
 Under North Carolina law at the time, the local education agency had 30 days to provide notice to the parents when a child in a special education program was transferred.  Within 30 days of the notice, the local education agency was required to present a diagnosis and evaluation, including the IEP.  N.C.Gen.Stat. Sec. 115C-113(b), (c) (1987).  The law was amended in 1989 and the procedures modified.  See id. Sec. 115C-113(c) (1989)

6
 The district court noted, for example, that the Dentons changed the title of the Direct Care Coordinator to "Lead Teaching Parent," in an effort to emphasize educational responsibilities

7
 The North Carolina review procedures have been amended and now provide that administrative review is to be initiated and conducted in accordance with the state Administrative Procedure Act.  N.C.Gen.Stat. Sec. 115C-116(d) (1989)

8
 The review officer left to the Board the development of a specific program of days and times of services, consistent with his opinion and the proposed IEP.  J.A. I, at 23

9
 In its complaint, the Board proposed as an alternative, should the district court decide that Chris requires residential instruction, that the court direct the Board to provide residential placement outside the Denton home.  The only question before this court involves construction of the EHA and the parallel North Carolina law.  Our only consideration, therefore, is whether the EHA or North Carolina's special education law requires the Board to fund the services sought by the Dentons

10
 "The term 'special education' means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions."    20 U.S.C. Sec. 1401(16)

11
 "The term 'related services' means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children."    20 U.S.C. Sec. 1401(17)

12
 "The term 'free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title."    20 U.S.C. Sec. 1401(18)

13
 Some courts have held that compensatory educational services cannot be awarded under the EHA.  See generally Comment, Compensatory Educational Services and the Education for All Handicapped Children Act, 1984 Wisc.L.Rev. 1469.  We limit our consideration of this question to the facts of this case

14
 The Board also argues that federal preemption may require the application of the federal standard of review to all claims regarding the proper placement of a handicapped child.  See Town of Burlington v. Massachusetts Dep't of Educ.  (Burlington I), 655 F.2d 428, 431 (1st Cir.1981).  The Burlington court found that the state law substantial evidence review standard did conflict with the federal standard.  Our resolution of this question based on the federal and North Carolina statutes, eliminates any need to resolve the preemption argument, or the argument that under Erie principles, as refined in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), federal procedural law should apply irrespective of the state statute

15
 The Dentons make one oblique reference in their brief to the equal protection clause of the fourteenth amendment.  We find no basis in the record for an equal protection claim


20 F.3d 1170
Khawajav.Shalala*
NO. 93-01559
United States Court of Appeals,Fifth Circuit.
Apr 08, 1994

1
Appeal From:  N.D.Tex.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


79 F.3d 1143
Hillv.Kilgore
NO. 95-60319
United States Court of Appeals,Fifth Circuit.
Feb 06, 1996

1
Appeal From:  S.D.Miss., No. 2:93-CV-133-RS

2
AFFIRMED.


621 F.Supp.2d 829 (2008)
Emil Joseph Wilhelm EKDAHL, III, Petitioner,
v.
Robert AYERS, Warden, Respondent.
No. C 07-03642 SBA (PR).
United States District Court, N.D. California.
December 12, 2008.
*833 Emil J.W. Ekdahl, III, San Quentin, CA, pro se.
Amber Nicole Wipfler, Office of the Attorney General, San Francisco, CA, for Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ON ALL CLAIMS AND ADDRESSING PENDING MOTIONS
SAUNDRA BROWN ARMSTRONG, District Judge.

INTRODUCTION
Petitioner Emil Joseph Wilhelm Ekdahl, a state prisoner incarcerated at San Quentin State Prison (SQSP) in San Quentin, California, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is now submitted *834 for the Court's consideration of the merits of the petition. For the reasons discussed below, the petition will be DENIED as to all claims.

BACKGROUND
The Monterey County Superior Court sentenced Petitioner to a term of fifteen years to life in state prison for robbery and second degree murder. (Resp't Ex. A.) The present petition does not challenge Petitioner's underlying conviction. Rather, it challenges the denial of his parole suitability by the Board of Parole Hearings (BPH) in 2005.
On July 1, 2005, at Petitioner's seventh parole hearing, the BPH denied him parole. (Resp't Ex. D, Subsequent Parole Cons. Hr'g Tr. at 20.) During a preliminary parole hearing, Petitioner waived his right to an attorney and his right to be present. (Id. at 3.) At the parole hearing, the BPH denied parole based on the circumstances of Petitioner's commitment offense, his misconduct while incarcerated, his lack of participation in self-help programs, his unfavorable psychological reports, and the Monterey County District Attorney's opposition to parole.
Petitioner sought habeas relief in state court. On July 21, 2006, the Monterey County Superior Court issued an order directing the Respondent to file an informal response. (Resp't Ex. F1, Monterey County Super. Ct. July 21, 2006 Order at 7.) On August 28, 2006, the superior court denied Petitioner's habeas claim, upon finding that the BPH had not abused its discretion in considering Petitioner's suitability for parole. (Resp't Ex. F-2, Monterey County Super. Ct. Aug. 28, 2006 Order at 2.) On October 16, 2006, the state appellate court denied Petitioner's habeas petition. (Resp't Ex. G.) The California Supreme Court summarily denied his state habeas petition on March 30, 2005. (Resp't Ex. H.)
On July 16, 2007, Petitioner filed the instant petition (docket no. 1). On September 5, 2007, the Court issued an order to show cause (docket no. 4). On November 5, 2007, Respondent filed an Answer (docket no. 5). On December 3, 2007, Petitioner filed a Traverse (docket no. 11). Petitioner filed motions to expand the record, to conduct discovery and have an evidentiary hearing, for appointment of counsel, and for judicial notice (docket nos. 10, 12, 13, 14, 15). On September 22, 2008, 2008 WL 4344314, the Court denied those motions (docket no. 16).
On October 1, 2008, Petitioner filed a motion for the Court to take judicial notice of his change of parole plans (docket no. 17). On October 8, 2008, Petitioner filed a motion for the Court to reconsider its denial of his requests for discovery and an evidentiary hearing (docket no. 18). On October 27, 2008, Petitioner filed an request for judicial notice of "Carols Ortiz Order to Show Cause and Parole Matters Synopsis of Recent Court Cases" (docket no. 19). On November 4, 2008, Petitioner filed a motion requesting discovery, an evidentiary hearing, and appointment of counsel (docket no. 22). On November 17, 2008, Petitioner filed a "Motion Requesting Emergency or Expedited Stay of Petitioner's December 15, 2008 Parole Hearing" (docket no. 23).
The Court will proceed to consider the merits of Petitioner's due process claims relating to the BPH's 2005 parole denial. The Court will also address his pending motions.

STANDARD OF REVIEW

I. Legal Standard

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district *835 court may grant a petition challenging a state conviction or sentence on the basis of a claim that was "adjudicated on the merits" in state court only if the state court's 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). A state court has "adjudicated" a petitioner's constitutional claim "on the merits" for purposes of § 2254(d) when it has decided the petitioner's right to post-conviction relief on the basis of the substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review on the merits. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.2004). It is error for a federal court to review de novo a claim that was adjudicated on the merits in state court. See Price v. Vincent, 538 U.S. 634, 638-43, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003).
The Ninth Circuit has applied section 2254(d) to a habeas petition from a state prisoner challenging the denial of parole. See Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1126-27 (9th Cir. 2006); Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir.2005) (per curiam); McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir.2002) (assuming without deciding that AEDPA deferential standard of review under § 2254 applies to such decisions).

A. Section 2254(d)(1)

Challenges to purely legal questions resolved by a state court are reviewed under § 2254(d)(1), under which a state prisoner may obtain habeas relief with respect to a claim adjudicated on the merits in state court only if the state court adjudication 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." Williams v. Taylor, 529 U.S. 362, 402-04, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). While the "contrary to" and "unreasonable application" clauses have independent meaning, see id. at 404-05, 120 S.Ct. 1495, they often overlap, which may necessitate examining a petitioner's allegations against both standards, see Van Tran v. Lindsey, 212 F.3d 1143, 1149-50 (9th Cir.2000), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63, 70-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

1. Clearly Established Federal Law

"Clearly established federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412, 120 S.Ct. 1495. "Section 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence." Id. "A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). If there is no Supreme Court precedent that controls on the legal issue raised by a petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly-established federal law. See, e.g., Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir.2004).
The fact Supreme Court law sets forth a fact-intensive inquiry to determine *836 whether constitutional rights were violated "obviates neither the clarity of the rule nor the extent to which the rule must be seen as `established'" by the Supreme Court. Williams, 529 U.S. at 391, 120 S.Ct. 1495. There are, however, areas in which the Supreme Court has not established a clear or consistent path for courts to follow in determining whether a particular event violates a constitutional right; in such an area, it may be that only the general principle can be regarded as "clearly established." Andrade, 538 U.S. at 64-65, 123 S.Ct. 1166. When only the general principle is clearly established, it is the only law amenable to the "contrary to" or "unreasonable application of" framework. See id. at 73, 123 S.Ct. 1166.
Circuit decisions may still be relevant as persuasive authority to determine whether a particular state court holding is an "unreasonable application" of Supreme Court precedent or to assess what law is "clearly established." Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir.), cert. denied, 540 U.S. 968, 124 S.Ct. 446, 157 L.Ed.2d 313 (2003); Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.1999).

2. "Contrary to"

"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." Williams, 529 U.S. at 413, 120 S.Ct. 1495. A "run-of-the-mill state-court decision" that correctly identifies the controlling Supreme Court framework and applies it to the facts of a prisoner's case "would not fit comfortably within § 2254(d)(1)'s `contrary to' clause." Williams, 529 U.S. at 406, 120 S.Ct. 1495. Such a case should be analyzed under the "unreasonable application" prong of § 2254(d). See Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir.2000).

3. "Unreasonable Application"

"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's case." Williams, 529 U.S. at 412-13, 120 S.Ct. 1495.
"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495; accord Middleton v. McNeil, 541 U.S. 433, 436, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (per curiam) (challenge to state court's application of governing federal law must be not only erroneous, but objectively unreasonable); Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) ("unreasonable" application of law is not equivalent to "incorrect" application of law).
Evaluating whether a rule application was unreasonable requires considering the relevant rule's specificity; if a legal rule is specific, the range of reasonable judgment may be narrow; if it is more general, the state courts have more leeway. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). Whether the state court's decision was unreasonable must be assessed in light of the record that court had before it. Holland v. Jackson, 542 U.S. 649, 651, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam).
*837 The objectively unreasonable standard is not a clear error standard. Andrade, 538 U.S. at 75-76, 123 S.Ct. 1166 (rejecting Van Tran's use of "clear error" standard); Clark, 331 F.3d at 1067-69 (acknowledging the overruling of Van Tran on this point). After Andrade,
[T]he writ may not issue simply because, in our determination, a state court's application of federal law was erroneous, clearly or otherwise. While the "objectively unreasonable" standard is not self-explanatory, at a minimum it denotes a greater degree of deference to the state courts than [the Ninth Circuit] ha[s] previously afforded them.
Id. In examining whether the state court decision was unreasonable, the inquiry may require analysis of the state court's method as well as its result. Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003).

B. Section 2254(d)(2)

A federal habeas court may grant a writ if it concludes a state court's adjudication of a claim "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)(2). An unreasonable determination of the facts occurs where the state court fails to consider and weigh highly probative, relevant evidence, central to petitioner's claim, that was properly presented and made part of the state court record. Taylor v. Maddox, 366 F.3d 992, 1005 (9th Cir. 2004). A district court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

C. Exhaustion

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). Petitioner's state court remedies were exhausted as his claims were presented to and denied by the California Supreme Court.

FACTUAL BACKGROUND
Although Petitioner is not challenging the validity of his underlying criminal conviction, the facts regarding the commitment offense were relied upon by the BPH to deny Petitioner parole in 2005. The following facts regarding the circumstances surrounding the offense were taken from the Probation Officer's Report:
On October 18, 1981, at approximately 10:50 p.m., Soledad Police responded to Pete's Shell (a service station and grocery store) on South Front Street regarding an armed robbery which had just occurred. Arthur Sandoval (17) was located behind the station face down in a pool of blood; there was no pulse. Victims Pamela Lewis (21) and Sal Montoya (19) stated that two subjects with ski masks entered the store, ordered them to lay on the floor, took $13 from the cash register and ran from the store. A short time later, they heard two shots....
....
The autopsy report indicates that Arthur Sandovol died from gunshot wounds to the head....
....

*838 Joe Ekdahl (20) was arrested for this case on September 16, 1983. After advisement of rights, Ekdahl stated that he and Steve Horning had been given pistols by Mark Horning. They drove to Soledad, where Mark told him, "get out and go with Steve to do the job or I'll kick your ass." He followed Steven into the store. He stated that Steven ordered the victims to lie on the floor. Two Mexican adults entered the store and they refused to lie on the floor. They took the money from the register and ran from the store. Ekdahl stated that he heard two shots as they were running from the store to the vehicle which was occupied by Mark Horning. He mentioned that Mark Horning was angry because they had gotten so little money.
(Resp't Ex. B, Probation Officer's Report at 4-5.)
Petitioner was convicted of first degree felony murder. (Resp't Ex. F-1 at 5.) The trial court reduced his conviction to second degree felony murder, which carries a sentence of fifteen years to life. (Id.)

DISCUSSION

I. Subject Matter Jurisdiction

Respondent argues the petition should be dismissed for want of subject matter jurisdiction because Petitioner has no federally protected liberty interest in parole. Respondent's argument is without merit.
Respondent relies on In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783, cert. denied, 546 U.S. 844, 126 S.Ct. 92, 163 L.Ed.2d 109 (2005), as authority for his contention that the California statute does not create a liberty interest in parole. This argument has been rejected by the United States Court of Appeals for the Ninth Circuit. See Sass, 461 F.3d at 1125 ("California inmates continue to have a liberty interest in parole after [In re Dannenberg].").
Accordingly, the Court has subject matter jurisdiction under 28 U.S.C. § 2254 to decide whether Petitioner's right to due process was violated by the BPH's denial of his parole suitability.

II. Due Process Claim

A. Applicable Legal Standard

"In analyzing the procedural safeguards owed to an inmate under the Due Process clause, [a court] must look at two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural safeguards." Biggs v. Terhune, 334 F.3d 910, 913 (9th Cir.2003). The second prong of this test is satisfied if (1) the inmate has been afforded an opportunity to be heard and, if denied parole, informed of the reasons underlying the decision and (2) "some evidence" supports the decision to grant or deny parole. See Sass, 461 F.3d at 1129 (adopting some evidence standard for disciplinary hearings outlined in Superintendent v. Hill, 472 U.S. 445, 454-55, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)).
"To 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 the parole board. Sass, 461 F.3d at 1128 (quoting Hill, 472 U.S. at 455-56, 105 S.Ct. 2768). 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 *839 Hill, 472 U.S. at 457, 105 S.Ct. 2768). The some evidence standard of Hill is clearly established law in the parole context for purposes of § 2254(d). Id.
Three Ninth Circuit cases provide the guideposts for applying the Hill "some evidence" standard on this point: Biggs, Sass, and Irons v. Carey, 506 F.3d 951, 955 (9th Cir.2007). Biggs explained that the value of the criminal offense fades over time as a predictor of parole suitability:
The Parole Board's decision is one of `equity' and requires a careful balancing and assessment of the factors considered.... A continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation.
Biggs, 334 F.3d at 916-17. Biggs upheld the initial denial of a parole release date based solely on the nature of the crime and the prisoner's conduct before incarceration, but cautioned that "[o]ver time ... should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs's offense and prior conduct would raise serious questions involving his liberty interest in parole." Id. at 916. Next came Sass, which criticized the Biggs statements as improper and beyond the scope of the dispute before the court: "Under AEDPA it is not our function to speculate about how future parole hearings could proceed." Sass, 461 F.3d at 1129. Sass determined that the parole board is not precluded from relying on unchanging factors such as the circumstances of the commitment offense or the petitioner's pre-offense behavior in determining parole suitability. See id. (commitment offenses in combination with prior offenses provided some evidence to support denial of parole at subsequent parole consideration hearing). Sass also put to rest any idea from Biggs that the commitment crime and pre-offense behavior only support the initial denial of parole. Irons determined that due process was not violated by the use of the commitment offense and pre-offense criminality to deny parole for a prisoner sixteen years into his seventeen-to-life sentence. Irons emphasized that in all three cases (Irons, Sass and Biggs) in which the court had "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." Irons, 506 F.3d at 955. Interpreting this statement from Irons to suggest that the offense can only be relied on until the minimum number of years has been reached would suffer the same problem that Sass identified in Biggs: it is not the holding of the case. The dicta in Biggs and Irons are speculative and do not determine when a denial of parole based solely upon the commitment offense or pre-offense behavior violates due process. Neither logic nor Irons compel a decision that such reliance must cease when the prisoner reaches the minimum number of years in his sentence, such as the fifteenth year of a fifteen-to-life sentence.
The upshot of these three cases is that the BPT can look at immutable events, such as the nature of the conviction offense and pre-conviction criminality, to predict that a prisoner is not currently suitable for parole even after the initial denial (Sass), but the weight to be attributed to these immutable events should decrease over time as a predictor of future dangerousness as the years pass and the prisoner demonstrates favorable behavior (Biggs and Irons). Sass did not dispute the principle that, other things being *840 equal, a murder committed fifty years ago is less probative of a prisoner's current dangerousness than one committed ten years ago. Not only does the passage of time in prison count for something, exemplary behavior and rehabilitation in prison count for something according to Biggs and Irons. Hill's standard might be quite low, but it does require that the decision not be arbitrary, and reliance on only the facts of the crime might eventually make for an arbitrary decision.
What little guidance has come from the Supreme Court suggests that judicial review should be extremely deferential to the original decisionmaker in the parole context. In addition to the very low evidentiary standard that Hill imposes, other Supreme Court comments suggest that the judiciary should be quite mindful of the subjective and predictive nature of a parole board's decision. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).
No ideal, error-free way to make parole-release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual parole decisionmakers in predicting future behavior. Our system of federalism encourages this state experimentation.
Id.

B. Parole for Murderers in California

California uses indeterminate sentences for most non-capital murderers, with the term being life imprisonment and parole eligibility after a certain minimum number of years. A first degree murder conviction yields a minimum term of twenty-five years to life and a second degree murder conviction yields a minimum term of fifteen years to life imprisonment. See In re Dannenberg, 34 Cal.4th at 1078, 23 Cal. Rptr.3d 417, 104 P.3d 783; Cal.Penal Code § 190. The upshot of California's parole scheme described below is that a release date normally must be set unless certain factors exist, but the "unless" qualifier is so great that parole is a rarity rather than the norm for murderers.
California Penal Code § 3041(a) states a BPH shall meet with an inmate one year before the prisoner's minimum eligible release date and shall normally set a parole release date. Penal Code § 3041(a).
The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates.
Id.
Significantly, this statute also provides:
The panel ... shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of 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.
Id. § 3041(b).
One of the implementing regulations, Title 15 of the California Code of Regulations § 2401, provides:
A parole date shall be denied if the prisoner is found unsuitable for parole under Section 2402(c). A parole date shall be set if the prisoner is found *841 suitable for parole under Section 2402(d). A parole date set under this article shall be set in a manner that provides uniform terms for offenses of similar gravity and magnitude with respect to the threat to the public.
Cal.Code Regs. tit. 15, § 2401.
The regulation also provides:
The 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.
Id. § 2402(a). The panel may consider all relevant and reliable information available to it. Id. § 2402(b).
The regulations contain a matrix of suggested base terms that is apparently the source of many prisoners' dashed hopes. The matrix provides three choices of suggested base terms for several categories of crimes. See Code Regs. tit. 15, § 2403. For second degree murders, the matrix of base terms ranges from a low of fifteen, sixteen or seventeen years, to a high of nineteen, twenty or twenty-one years, depending on certain facts of the crime.[1] Although the matrix is used to establish a base term, this occurs only once the prisoner has been found suitable for parole. See id. § 2403(a). Here, Petitioner has served about twenty-three years in prison. However, he has not yet been found suitable for parole by the BPH.
The statutory scheme elevates a prisoner's suitability for parole above their expectancy in the early setting of a fixed date, designed to ensure term uniformity. In re Dannenberg, 34 Cal.4th at 1070-71, 23 Cal.Rptr.3d 417, 104 P.3d 783.
While subdivision (a) of section 3041 states that indeterminate life (i.e., life-maximum) sentences should "normally" receive "uniform" parole dates for similar crimes, subdivision (b) provides that this policy applies "unless [the Board] determines" that a release date cannot presently be set because the particular offender's crime and/or criminal history raises "public safety" concerns requiring further indefinite incarceration. (Italics added.) Nothing in the statute states or suggests that the Board must evaluate the case under standards of term uniformity before exercising its authority to deny a parole date on the grounds the particular offender's criminality presents a continuing public danger.

Id. at 1070, 23 Cal.Rptr.3d 417, 104 P.3d 783 (emphasis and brackets in original). Indeed, the very regulation that includes the matrix states that "[t]he panel shall set a base term for each life prisoner who is found suitable for parole." Code Regs. tit. 15, § 2403(a) (emphasis added). "[T]he Board, exercising its traditional broad discretion, may protect public safety in each discrete case by considering the dangerous implications of a life-maximum prisoner's crime individually." In re Dannenberg, 34 Cal.4th at 1071, 23 Cal.Rptr.3d 417, 104 P.3d 783 (emphasis in original). The California Supreme Court's determination of state law is binding in this federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); *842 Sandstrom v. Montana, 442 U.S. 510, 516-17, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
The California Supreme Court has also determined the facts of the crime alone can support a sentence longer than the statutory minimum, even if everything else about the prisoner is laudable.
While the Board must point to factors beyond the minimum elements of the crime for which the inmate was committed, it need engage in no further comparative analysis before concluding that the particular facts of the offense make it unsafe, at that time, to fix a date for the prisoner's release.
In re Dannenberg, 34 Cal.4th at 1071, 23 Cal.Rptr.3d 417, 104 P.3d 783; see also In re Rosenkrantz, 29 Cal.4th 616, 682-83, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002) ("The nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole" but might violate due process "where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense.").

C. Analysis

1. Opportunity to Be Heard and Reasons for Denial

Having stated that California inmates still maintain a liberty interest in parole, the Court analyzes the second prong of the Biggs test. Under this prong, the first question pertains to whether Petitioner was given an opportunity to be heard and whether he was given reasons for the parole denial. See Biggs, 334 F.3d at 913; Sass, 461 F.3d at 1126; Greenholtz, 442 U.S. at 16, 99 S.Ct. 2100.
Petitioner waived his right to participate in his parole hearing. (Resp't Ex. D at 2.) The BPH held a preliminary hearing on July 1, 2005 regarding Petitioner's desire to waive his right to an attorney and his right to be present at his parole hearing. (Id. at 1.) Petitioner spoke with Ed Albord, an attorney, who was present during the preliminary hearing, about waiving his rights. (Id.) At the preliminary hearing, Mr. Albord testified that Petitioner was able to waive his rights:
Presiding Commissioner Lee: We are all here because I have a document that indicates that Mr. Ekdahl wishes to waive attorney and waive his presence. Generally, that is absolutely right. He can do whatever he chooses to do. However, I can do so only if he is able to waive his rights. Counsel, you've had an opportunity to speak with Mr. Ekdahl. Do you believe he can waive his rights in regards to this hearing and his representation by counsel?
Attorney Albord: I read his file. I attempted to discuss with Mr. Ekdahl and we spoke (indiscernible) and then [sic] did not want the participation. He did convey to me that he wanted to waive.
(Id. at 2.)
Petitioner also testified that he was aware of his rights and wanted to waive them:
Presiding Commissioner Lee: ... I just wanted to make sure that this was a situation that you were doing itof that you are fully understanding of what you were going to do, so I will not violate your rights. If you wish to waive your hearing, you absolutely have that right to waive your attorney. I just want to verify on the record that you know what you're doing, that this (indiscernible). So at this time, sir, understand that all the reasons (indiscernible) 115 and at this point in time you don't want to sit through this and that you don't want an attorney to represent you; is that correct?

*843 Inmate Ekdahl: It isn't because of the 115, but yes, I do want to waive my right-waive my right to attend the hearing. I want to waive my right to a [sic] attorney.
(Id. at 3.)
The record shows that Petitioner waived his right to counsel and his right to be present at his parole hearing. During the parole hearing on July 1, 2005, the BPH laid out detailed reasons for denying Petitioner parole, which are discussed further below. Therefore, the Court finds that the BPH satisfied the requirements for due process under this prong.

2. "Some Evidence" Standard

The next question is whether there was some evidence to support the BPH's decision to deny parole. What little guidance has come from the Supreme Court suggests that the "some evidence" standard is extremely deferential to the original decision-maker. See Hill, 472 U.S. at 454, 105 S.Ct. 2768 (An examination of the entire record is not required nor is an independent assessment of the credibility of witnesses or weighing of the evidence; the relevant question is whether there is any evidence in the record that could support the conclusion reached by the decision-maker.). Moreover, the Supreme Court's comments suggest that the judiciary should be quite mindful of the subjective and predictive nature of a parole board's decision. See Greenholtz, 442 U.S. at 13, 99 S.Ct. 2100 ("No ideal, error-free way to make parole-release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual parole decisionmakers in predicting future behavior.").
Title 15 of the California Code of Regulations § 2402 sets forth the circumstances that tend to show unsuitability for parole release. Section 2402(c)(1) provides the nature of a commitment offense may justify denial if the "prisoner committed the offense in an especially heinous, atrocious or cruel manner." Code Regs., tit. 15 § 2402(c)(1). The factors considered include:
(A) Multiple victims were attacked, injured or killed in the same or separate incidents;
(B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder;
(C) The victim was abused, defiled or mutilated during or after the offense;
(D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering; and
(E) The motive for the crime is inexplicable or very trivial in relation to the offense.
Id.
Further, Penal Code § 3042(f)(3) states that the Board must consider the statements and recommendations made by the district attorney's office, the investigating law enforcement agency, and the victims or their next of kin who have requested to speak. See In re Dannenberg, 34 Cal.4th at 1085, 23 Cal.Rptr.3d 417, 104 P.3d 783.
At the 2005 parole suitability hearing, the BPH found that Petitioner was "not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." (Resp't Ex. D at 15.) The BPH found Petitioner unsuitable for parole based on his commitment offense:
The Panel has reviewed all information received from the public and relied on the following circumstances in concluding prisoner is not suitable for parole *844 and would pose an unreasonable risk to danger to society and a threat to public safety if released from prison. The offense was carried out in a cruel and callous manner. Multiple victims were robbed and one person killed. Offense was carried out in a dispassionate manner or that the crime was inexplicable and very trivial in relationship to the offense.
Id.
The BPH also considered Petitioner's misconduct during incarceration and two unfavorable psychological reports:
The other reason for the denial at this point in time is his institutional behavior. Prior programming has only been limited while incarcerated. He has not sufficiently participated in programs. He has failed to demonstrate evidence of positive change.
Misconduct while incarcerated include[s] recently a 115, April 29th, year 2004 as well as five recent 128s, starting with chrono 2003 which is his last parole date. He had a 115 on July 2000excuse me, a 128[on] July 2003; April of 2004; another one in April 2004; in June 2004... and finally a recent January 2005. The psychological report from a Dr. Louis PhD indicates that there are concerns. One of the major concerns that the doctor had was in regard to his AA 12-step program. Basically the doctor indicates that under impressions, assessment of (indiscernible) 2003 details a risk of dangerousness. Under Dr. Bencichs, B-E-N-C-I-C-H-S, reports, "If the state absolutely asks for drug and alcohol (indiscernible) finds potential comparted to average lifer. However, his capacity (indiscernible) social status were he released was compromised since he is no longer availing himself for (indiscernible) of weekly support of 12-step meeting. This makes it more likely that he will relapse.
(Id. at 16-17.)
The BPH also relied on a letter from the Monterey County District Attorney opposing Petitioner's parole and Petitioner's unviable parole plans. The BPH found that:
The prisoner continues to need therapy programming and self-help in order (indiscernible) discuss the (indiscernible) cope and stress in a nondestructive manner as well as to gather greater insight into the crime. In review of the prisoner's social history and lack of program participation, there's no occasion that the prisoner would behave differently if paroled. Prisoner should be commended for the fact that he is attempting prisoner is commended by the Commission to the fact that he realized that he was unsuitable and has not attempted to mitigate his numerous violations while incarcerated, and for that reason, we will take that into account during the deliberations regarding the amount of denial. These factors, however, do not outweigh the factors of unsuitability.
(Id. at 17.)
The state court upheld the BPH's parole denial in a thorough and reasoned opinion. In his state habeas petition, Petitioner made several claims that the BPH's decision was not based on "some evidence." Each claim was addressed by the state court.
In finding "some evidence" to support the BPH's finding of parole unsuitability, the state court stated:
The 2005 Board found Petitioner unsuitable for parole based upon the commitment offense, his institutional behavior (lack of sufficient program participation, failure to demonstrate evidence of positive change, recent receipt of one CDC-115 and five CDC-128s), his somewhat *845 unfavorable psychological report, and the objection of the Monterey County District Attorney. The court has reviewed the hearing transcripts, the psychological reports, and the correspondence from the District Attorney and finds there is "some evidence" in the record to support the Board's finding. The Board did not premise its determination on the commitment offense alone. Rather, it determined that given Petitioner's social history, past and current depression, and his reluctance to discuss his feelings concerning the crime, he would substantially benefit from attending institutional programs, including AA. The rehabilitative goals of the correctional system are met when inmates participate in programs that will better enable them to adjust to life beyond the prison walls. The Board acted within its discretion in finding Petitioner unsuitable for parole because, considering all relevant and reliable information available to the Board, it found that releasing Petitioner at this time would jeopardize the public safety.
(Resp't Ex. F-1 at 2-3.)
In response to Petitioner's claim that the BPH's reliance upon unreliable evidence resulted in a hearing and decision which was arbitrary and capricious in nature, the state court found:
The Board posited that "the inmate actually got worse after the incident, never turned anyone in. This theory indicates that maybe he had more participation in the crime than he alleges." [Citation omitted.] Petitioner contends that by engaging in speculation, or as he puts it, "a secret theory," the Board was in essence conducting a kangaroo court. [Citation omitted.] However, there is no evidence before the Court that the Board based its finding of unsuitability on mere speculation. Accordingly, this claim must fail.
(Id. at 4.)
Petitioner also claims that the BPH improperly used static factors to deny parole suitability. The state court held that after an individualized analysis, the BPH gave sufficient reasons on the record for denying parole:
The court has reviewed the hearing transcripts, the psychological reports, and the correspondence from the District Attorney and finds there is "some evidence" in the record to support the Board's finding. The Board did not premise its determination on the commitment offense alone. Rather, it determined that given the Petitioner's social history, past and current depression, and his reluctance to discuss his feelings concerning the crime, he would substantially benefit from attending institutional programs, including AA. The rehabilitative goals of the correctional system are met when inmates participate in programs that will better enable them to adjust to life beyond prison walls. The Board acted within its discretion in finding Petitioner unsuitable for parole because, considering all relevant and reliable information available to the Board, it found that releasing Petitioner at this time would jeopardize public safety.
(Id. at 2-3.)
Finally, Petitioner claims that the BPH improperly denied him parole based on his program participation. The state court stated:
The Board found that Petitioner would benefit from participa[tion] in therapy sessions for the purpose of dealing with stress in a non-destructive manner. Petitioner notes that in his psychological evaluation, Dr. Lewis recommended therapy for the limited purpose of treating Petitioner's depression. Petitioner *846 does not contend that it was Dr. Lewis' obligation to consider each type of therapy available to Petitioner in the institutional setting and make a recommendation as to which type of available therapy Petitioner would either avail himself of, or reject at all costs. The evaluation is one of the factors considered by the Board, but not the sole factor, in determining whether an inmate is suitable for parole. It was well within the discretion of the Board to determine, based on all of the evidence before it, that Petitioner would be better able to adjust to life "on the outside" by participating in therapeutic sessions. The Court will not disturb this finding.
(Id. at 4-5.)
The state court thoroughly reviewed Petitioner's "some evidence" claim as well as the BPH's reasons for finding Petitioner unsuitable for parole. The BPH identified fact-specific reasons to support its conclusion that Petitioner was unsuitable for parole. Contrary to Petitioner's arguments, the record shows that the BPH's findings were supported by some evidence. The BPH conducted a thorough review and consideration of Petitioner's individual factors tending to show unsuitability and suitability for parole.
The Ninth Circuit's evolving guidance in Biggs, Sass and Irons suggests that the Board can continue to evaluate static factors, including the nature of the commitment offense, in deciding whether to grant parole. See Sass, 461 F.3d at 1129. The weight to be attributed to these immutable events, however, should decrease as a predictor of future dangerousness as the years pass and the prisoner demonstrates favorable behavior. See Biggs, 334 F.3d at 916-17; Irons v. Carey, 505 F.3d 846, 851 (9th Cir.2007). Should Petitioner continue to follow the Board's advice by attending self-help programming and maintaining a positive disciplinary record, continued parole denials based on Petitioner's commitment offense alone could eventually give rise to a due process violation.
Having reviewed the facts of the crime as recited by the BPH and the other reasons stated for finding Petitioner ineligible for parole, the Court finds that there was some evidence in the record to support the state court upholding the BPH's decision. See Hill, 472 U.S. at 455-56, 105 S.Ct. 2768. The Court concludes that the state court's decision was not 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)(2), nor was it contrary to, or an unreasonable application of, clearly established federal law, id. § 2254(d)(1).

3. Other Arguments

Petitioner makes three additional arguments: (1) the BPH violated his free exercise of religion when they required him to attend Alcoholics Anonymous (AA) meetings; (2) the BPH denied him his due process rights by failing to notify his trial attorney of the date of the parole suitability hearing; (3) he was illegally sentenced to second degree felony murder, and is entitled to receive a first degree felony murder sentence, which carries the potential penalty of death; and (4) Penal Code section 3001 is unconstitutional as it applies to Petitioner and his parole plans. The Court finds that these arguments must fail.

a. Free Exercise of Religion

Petitioner claims that the BPH violated his due process rights and right to freedom of religion by requiring him to attend AA. The state court found that Petitioner stated a prima facie case for relief as to his due process claim:

*847 In Petitioner's view, the institution is forcing him to "convert to the AA religion." [Citation omitted.] Petitioner lost faith in God, experienced an "Evolutionary Social Darwinism enlightenment and became a[n] Evolutionist believing only in science." [Citation omitted.] Upon making this change, Petitioner stopped attending AA classes because he deems the programs to be religious in nature, in that "they require a belief in a higher power than mankind." [Citation omitted.] He maintains that the Board's requirement that all lifers attend AA programs is arbitrary (because the institution does not offer non-religious alcohol abstinence courses), imposes religion, and is in violation of Petitioner's rights under the ADA (Petitioner's health problems prevent him from working all day and attending AA classes in the evenings).
Under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), a government agency is prohibited from imposing a substantial burden on an inmate's exercise of religion unless it furthers a compelling governmental interest and is the least restrictive means of doing so. Here, the Board has indicated that Petitioner's attendance at AA is more or less of a prerequisite to a finding of parole suitability. However, Petitioner has failed to demonstrate that his Evolutionist beliefs are, in fact, religious beliefs protected by the RLUIPA.
Nor has Petitioner demonstrated that the Board's requirement that he attend AA programs violates his rights under the ADA. To prevail on this claim, Petitioner must demonstrate that prison officials failed to provide "reasonable accommodations" with respect to his attendance at AA programs because of his disability. [Citations omitted.] Petitioner has failed to make this showing.
Petitioner has a better argument that the actions of prison officials are arbitrary and capricious, in that only religious-based alcohol abstinence courses are offered by the facility, and attendance is, in effect, mandatory. Petitioner appears to have stated a prima facie case for relief on the grounds of due process ....
(Resp't Ex. F-1 at 3-4.)
The state court sought an informal response from Respondent as to whether other programs were available at SQSP. (Id.) On August 28, 2006, the state court issued a second order finding that Petitioner's due process rights were not violated, because he could participate in a variety of self-help programs. (Resp't Ex. F-2 at 1.) The state court found:
It appears from the record that Petitioner does have a variety of self-help programs available to him in the institution. At his parole suitability hearing, it was determined that Petitioner would benefit from attending self-help programs, and that through his attendance, he would be demonstrating his commitment to rehabilitation and suitability for parole.
(Id.)
This Court finds the state court's decision to deny Petitioner's claim relating to his due process right to free exercise of religion was objectively reasonable.

b. Board's Failure to Notify Counsel of Hearing Date

The state court found that Petitioner failed to demonstrate any harm resulting from the Board's failure to notify his trial attorney about his parole suitability hearing on July 1, 2005. The court stated "Petitioner admits that he waived his right to have counsel appear at the *848 hearing. Accordingly, Petitioner has failed to demonstrate any harm resulting from such failure, and has failed to state a claim for relief on this ground." (Resp't Ex. F-1 at 4.)
The Court finds the state court's reasoning for denying Petitioner's claim that the Board failed to notify his trial attorney about his parole hearing on July 1, 2005 was objectively reasonable.

c. Improper Sentence

In finding Petitioner's sentence proper, the state court stated:
Petitioner was convicted of 1 st degree felony murder, which carries the potential penalty of death, but the trial court reduced the conviction to 2nd degree felony murder, which carries a term of 15 years to life. Pen.Code sec. 190(a). In Petitioner's view, a position supported by a news article attached to the petition [citation omitted], inmates on Death Row are more likely to be released from incarceration than inmates sentenced to a term of life imprisonment.
The trial court relied upon the decision in People v. Dillon, (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] in determining that the conviction should be reduced....
....
As Dillon explains, the Legislature is accorded the broadest discretion possible in enacting penal statutes and setting the punishment for criminal acts, but its authority is circumscribed by the constitutional provision prohibition cruel and unusual punishment. The final judgment as to whether the punishment set by the Legislature exceeds constitutional limits is left to the judiciary. In that determination, a court examines the nature of the offense and offender, and the totality of the circumstances, including motive and extent to the defendant's involvement. Here, Petitioner, an impressionable 17 year old boy with low self esteem, was coerced into joining two larger, intimidating men in their plan to rob a convenience store.... After carefully reviewing and considering all the evidence presented at trial, it may well be that the trial judge and jury felt similarly unsettled with imposing punishment for first degree murder, with the potential that Petitioner would be put to death for his role in the offense. In finding that the statutory punishment was sufficiently disproportionate to the crime that Petitioner's constitutional protection from cruel and unusual punishment was implicated, the court acted well within its jurisdiction to reduce the punishment to fit the crime.
(Id. at 5-6.)
The Court finds the state court's reasoning for denying Petitioner's claim relating to his sentence was objectively reasonable.

d. Constitutionality of Penal Code Section 3001

Petitioner claims that the application of Penal Code section 3001 is unconstitutional, as it requires him to secure parole in his county of commitment. The Court construes this claim as an objection to the BPH's finding that Petitioner's parole plans were not viable. The state court denied such a claim:
Petitioner concludes that the Board's requirement that he find suitable parole plans within Monterey County is unjust, in that Petitioner lacks family in the area. Petitioner has not been able to submit a viable parole plan because he lacks a job commitment from a Monterey County employer, and does not have a residence to parole to. He explains from a financial standpoint, he lacks the resources to create a viable parole plan within the County, but that the Board *849 refuses to allow him to parole closer to family members. However, the Board has made specific suggestions concerning where and how Petitioner might seek employment and housing, and Petitioner has failed to allege that he followed these suggestions, to no avail. Petitioner has not stated a cause of action as to this claim. Moreover, after Petitioner does create a viable parole plan and is released on parole, he will be able to request an interstate transfer, or a transfer to another county within the state.
(Id. at 6-7.)
The Court finds the state court's reasoning for denying Petitioner's claim relating to his parole plans was objectively reasonable.

4. Summary of Other Arguments

In sum, the Court concludes that the state court's decision to deny Petitioner's other arguments, as stated above, was not 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)(2), nor was it contrary to, or an unreasonable application of, clearly established federal law, id. § 2254(d)(1). Accordingly, Petitioner's remaining claims are DENIED.

CONCLUSION
For the foregoing reasons,
1. The instant petition for a writ of habeas corpus is DENIED as to all claims.
2. Petitioner's requests for judicial notice (docket nos. 17, 19) are GRANTED. However, the Court's decision to deny Petitioner's federal habeas petition is not affected by these documents.
3. Petitioner's motion for reconsideration of the Court's September 22, 2008 Order denying his requests for discovery and an evidentiary hearing (docket no. 18) is DENIED. Petitioner is again attempting to discover evidence that he made no attempt to discover in his state court proceedings. Therefore, Petitioner presents no grounds that warrant reconsideration.
4. Petitioner's requests for discovery and an evidentiary hearing (docket no. 22) are DENIED. At issue in his motion is his BPH "secret theory" claim, which has no bearing on his due process claims and does not affect the Court's decision to deny his habeas petition.
5. Petitioner's motion for appointment of counsel (docket no. 22) is DENIED.
6. Petitioner's "Motion Requesting Emergency or Expedited Stay of Petitioner's December 15, 2008 Parole Hearing" (docket no. 23) is DENIED.
7. The Clerk of the Court shall enter judgment in accordance with this Order, terminate all pending motions, and close the file.
8. This Order terminates Docket nos. 17, 18, 19, 22 and 23.
IT IS SO ORDERED.

JUDGMENT
For the reasons stated in the Court's Order Denying the Petition for a Writ of Habeas Corpus on All Claims and Addressing Pending Motions, judgment is hereby entered in favor of Respondent. Each party shall bear his own costs.
IT IS SO ORDERED.
NOTES
[1]  One axis of the matrix concerns the relationship between murderer and victim, and the other axis of the matrix concerns the circumstances of the murder. The choices on the axis for the relationship of murderer and victim are "participating victim," "prior relationship," and "no prior relationship." The choices on the axis for the circumstances of the murder are "indirect," "direct or victim contribution," or "severe trauma." Each of the choices is further defined in the matrix. See Code Regs. tit. 15, § 2403(c).