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 Correction and Rehabilitation following his 1989 conviction for first degree murder. Petitioner was sentenced to a 27-years-to-life sentence.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, Petitioner challenges the Board of Parole Hearings' ("Board") 2006 decision finding him unsuitable for parole.
On August 2, 2007, Petitioner filed a state petition for writ of habeas corpus in the Santa Clara County Superior Court, alleging that the Board's 2006 decision denying him parole violated his due process rights because there was no evidence of his current dangerousness to the public. (Exhibit A, to Petition, Exhibit B, to Answer.) On August 3, 2007, the superior court denied the petition stating "because there is 'some evidence' that Petitioner's recent disciplinary reports (128 & 115) suggest he is not yet reformed, Petitioner's post crime actions appear to show unsuitability under the 'detailed standards.'" (Exhibit B, to Answer.)
On October 18, 2007, Petitioner filed a state petition for writ of habeas corpus in the California Supreme Court, which was summarily denied on April 16, 2008. (Exhibits C & D, to Answer.)
Petitioner filed the instant federal petition for writ of habeas corpus on June 4, 2008. Respondent filed an answer to the petition on January 26, 2009. (Court Doc. 17.) Petitioner did not file a traverse.
On June 10, 1989 at approximately 10:45 p.m. officers of the Mountain View Police Department responded to the parking lot of a Burger King restaurant at 175 E. El Camino Real in Mountain View California, the scene of a reported shooting. Upon arrival, officers observed fire department personnel attending to a female subject, later identified as Linda Flores, . . ., who was lying on the ground. The officer advised Charlotte Flores, the victim's 18-year-old daughter who had witnessed the shooting was sitting in the back seat of a parole car. Charlotte Flores was contacted at which time she advised after she was feeling ill on the evening her mother had taken her to the El Camino Hospital for a treatment. . . .
On their way home they decided to stop at the Burger King restaurant and have something to eat. The victim's daughter indicated that her mother suddenly yelled, "Oh, my God." At which point Charlotte observed a subject with a gun standing next to the driver's door of their vehicle. Charlotte indicated that her mother began to scream and honk the horn after which the defendant told her to "Shut up." Charlotte exited the vehicle and while running to a nearby restaurant to call for help she heard two gunshots. The victim's daughter then proceeded into the restaurant where she reported that her mother had been shot and asked for assistance. The police were subsequently summoned. The defendant had been last seen running eastbound on the El Camino Real and a description provided by a witness was broadcast. The victim, Linda Flores, age 37, was transported to El Camino Hospital Emergency Room where she was pronounced dead upon arrival. According to the coroner's report, the cause of death was reported as a gunshot wound of the face and neck. The bullet reportedly entered the left side of the victim's face and was recovered from the area of the cervical spine. The defendant was apprehended at approximately 11:15 that evening after seen walking eastbound on El Camino Real. Responding police officers placed handcuffs on the defendants while searching his outer clothing, the .38 caliber revolver believed to be the suspect's weapon was found in the defendant's front waistband. As the search continued, the defendant stated, "I did it man, I did it." The defendant further stated, "Take me to jail." The defendant also stated during the arrest process, "She didn't die, did she? I was very nervous." Those statements were reportedly made spontaneously by the defendant. It was noted that the defendant asked several times if the officers had information with regard to the status of the victim and asked, "How much time do I get for this?" Following his arrest, blood samples showed the presence of cocaine in the defendant's system. The defendant was later questioned and asked for waiving his Miranda Rights [sic] and the defendant revealed his attentions were to, "Steal the girl's car." The defendant related that while holding the gun, he told the victim and her daughter he did not want to hurt anybody and to get out of the car. He stated he ordered them to do so and not give him any problems; however, the victim started screaming and honking the horn on the car. He stated that when the victim was reaching for her seatbelt he was afraid she had a gun. The defendant stated that he became nervous, started to run and fire the gun at the same time. He stated, "It just all happened so fast." The defendant revealed he pulled the trigger once and then ran and jumped over a fence next to a highway and continued running. He states that he then switched his shirt and his jacket around and walked on. The defendant was asked if he knew where he had shot the victim, at which time the defendant answered, "I figured right in the middle somewhere." When asked if he knew he hit the victim when he pulled the trigger, the defendant answered, "I kind of figured I did. Yeah, I was close enough and pointed it at her, so I figured it would hit her." When asked if he thought if he might have killed the victim, the defendant answered, "I wasn't thinking about it when I shot her. Afterwards, I started thinking about it. That's why I was asking the police officers what happened." When told the victim had not survived the attack, the defendant said, "I'm washed up now." He then said, "I feel like crying." (Exhibit A, to Answer, at 10-15.)
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 ...