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. 1]
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 following a 1984 conviction in the Fresno County Superior Court for one count of first degree murder with an enhancement for use of a firearm. Petitioner was sentenced to 27-years- to-life. (See Petition, p. 2, ¶¶ 3-4; Exhibit A, California State Department of Justice Criminal History Transcript.)
In the instant petition Petitioner does not challenge the validity of the judgment; rather, he challenges the Board of Parole Hearings' ("Board") 2007 decision finding him unsuitable for parole.
On or about January 25, 2008, Petitioner filed a state petition for writ of habeas corpus in the Fresno County Superior Court. The petition was denied in a reasoned opinion on February 5, 2008. (Exhibit G, to Petition.)
On or about February 25, 2008, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. The petition was summarily denied on May 30, 2008. (Exhibit H, to Petition.)
Petitioner then filed a petition for review in the California Supreme Court, which was summarily denied on August 13, 2008. (Exhibit I, to Petition.)
Petitioner filed the instant federal petition for writ of habeas corpus on October 14, 2008. Respondent filed an answer to the petition on January 20, 2009. (Court Doc. 11.) Petitioner did not file a traverse.
On the day before the murder, [Petitioner] had been drinking. Rosa Vasquez and Veronica Sanchez, . . . were living at 1519 East McKenzie . . . Avenue in Fresno. On October 5, 1983, [Petitioner] went to the residence of Rosa Vasquez, at approximately 2:00 a.m. He was in search of the victim, Gloria Sifuentes, who he had maintained a common law relationship with for approximately 11 years. They had two children by this relationship and had been separated for several months. On the morning of the murder, [Petitioner] walked uninvited into the Vasquez home carrying a rifle, while Rosa Vasquez and a guest, Manuel Fabela, . . . were in the living room watching television. [Petitioner] asked them where he could find the victim, Rosa Vasquez took him to the back bedroom where the victim was sleeping. The victim Gloria Sifuentes was sharing a bed with Veronica Sanchez and Veronica's two-year-old daughter. The victim had been drinking heavily that evening. [Petitioner] approached the victim, slapped her in the face, and ordered her to go with him or be killed. This command was repeated several times before the victim got out of bed. At one point [Petitioner] told the victim that he would go to prison but he would kill her anyway. Veronica Sanchez heard [Petitioner] remind the victim that he would kill her if he ever found her with another man. [Petitioner] shot the victim, the bullet penetrated her arm and stomach. The victim tried to get up, Rosa Vasquez wrapped a blanket around the victim in an attempt to help her. [Petitioner] again told the victim to leave with him or he would kill her. [Petitioner] pointed the rifle at the victim's head, Rosa Vasquez pushed the rifle away from the victim's head and attempted to reason with [Petitioner], but he threatened her. Rosa Vasquez left the room in order to call for help. [Petitioner] then shot the victim in the chest. He then shot her a third time at point blank range in the victim's ear. When the shooting was over, [Petitioner] threatened to shoot Rosa Vasquez if she did not hang up the telephone. When she continued to hold the telephone up to her ear, [Petitioner] fired a shot, which hit the wall close to Rosa's head. At that point [Petitioner] left the scene of the crime and was subsequently arrested by local law enforcement officers. (Exhibit F, to Petition, at 9-12.)
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 ...