The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 2]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) pursuant to a conviction by jury on April 26, 1990, of second degree murder with use of a firearm. (Exhibit A, Abstract of Judgment, attached to Answer.) Petitioner was sentenced and is serving an indeterminate term of seventeen years to life in prison. (Id.) Petitioner became eligible for parole in 2000.
In the instant petition, Petitioner does not challenge the constitutional validity of his conviction and sentence; rather, he challenges the Board of Prison Hearings (BPH) finding of unsuitability for parole on May 3, 2006. (Exhibit B, to Answer.)
On September 12, 2006, Petitioner filed a petition for writ of habeas corpus in the Orange County Superior Court challenging the sufficiency of the evidence in denying him parole.
(Exhibit C, to Answer.) The petition was denied in a reasoned decision on September 28, 2005. (Exhibit D, to Answer.)
Petitioner then filed a petition in the California Court of Appeal, which was summarily denied on January 11, 2007. (Exhibits E & F, to Answer.)
Thereafter, on January 22, 2007, Petitioner filed a petition for review in the California Supreme Court. (Exhibit G, to Answer.) The petition was summarily denied. (Exhibit H, to Answer.)
Petitioner filed the instant petition for writ of habeas corpus on or about November 20, 2007, in the United States District Court for the Central District of California. By order of December 3, 2007, the petition was transferred to this Court, and filed on December 17, 2007. (Court Doc. 2.)
Respondent filed an answer to the petition on April 8, 2008, and Petitioner filed a traverse on April 25, 2008. (Court Docs. 8, 9.)
On April 25, 1989, Mr. Tu Nguyen, the 33-year old victim and his friend, Mr. Thomas Chu, entered a Vietnamese restaurant in the Garden Grove area and sat at a table near Petitioner and his friend, co-defendant Hung Tran. Tran asked the victim what he was staring at and began cussing at the victim and his friend. Tran then approached the victim and attempted to hit him with a broken beer bottle. Petitioner then produced a handgun and fired three shots at the victim. The victim attempted to flee to the front door and collapsed. Co-defendant, Tran then walked over to the victim, kicked him, and asked if he was dead yet. The victim was pronounced dead the following morning. The autopsy revealed the cause of death was the result of two gunshot wounds to the back. There was no apparent relationship between the victim and Petitioner.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases ...