The opinion of the court was delivered by: Hon. William W Schwarzer United States District Judge
ORDER DENYING § 2254 PETITION
Harold Walker, a state prisoner proceeding pro se and in forma pauperis, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Walker claims that his February 2007 parole revocation violated his constitutionally protected due process rights. After a thorough review of the Petition, Respondent's Answer, Petitioner's Traverse, and all supporting documents, the court finds Walker is not entitled to the relief requested and therefore DENIES the Petition and DENIES Walker's request for an evidentiary hearing. Additionally, the court DENIES Walker's motion requesting the court rule on his Petition as moot. (Docket #39).
In November 2004, Walker was convicted of corporal injury to spouse, two counts of false imprisonment, and dissuading a witness. Ans. Ex. 1 (Abstract of judgment). He was released on parole in November 2006. Ans. Ex. 2 at 2 (Chronological history). As a special condition of his parole, Walker was not permitted to "contact or attempt to contact the victim [Kimberly Canada] in any matter without approval..." Ans. Ex. 5 (Notice and Conditions of Parole).
On January 16, 2007, Canada called Walker's parole agent. She said Walker was outside of the apartment where she was staying, he had threatened her and her friend, and that she feared for her safety. Pet. Ex. 6 at 1 (Parole agent report). The parole agent contacted the Fresno police department to request assistance. Id. When officers arrived at the scene, they spoke to Canada, who said that Walker had fled to a nearby apartment, and threatened to shoot her if she called the police. Pet. Ex. 7 at 3 (Fresno police report). The officers approached the apartment Canada indicated. Pet. Ex. 6 at 2. A man identifying himself as Harold Walker called out to the officers and shouted obscenities. Pet. Ex. 7 at 3. The officers asked him to come outside, but he refused. Id. Soon after, Walker's parole agent and a police sergeant arrived at the scene. Pet. Ex. 6 at 2. Both men instructed him to come out of the apartment. Id. Walker again refused. Id. The parole agent continued to talk with Walker. Pet. Ex. 6 at 2. After about twenty minutes, Walker finally exited the apartment, was taken into custody, and transported to the Fresno county jail.
Id. at 2-3. After Walker was arrested, the parole officer and a Fresno police officer interviewed Canada and her friend who was present during the incident. Id. at 3. The witnesses described the incident in greater detail, and Canada said that Walker told her that "if you set me up again, I'm gonna smoke you." Id. at 3. Canada's friend said that Walker threatened that he would "beat your ass too" and said "[t]ell your bitch friend she better not say my name in her mouth, or I'm going to smoke her." Pet. Ex. 6 at 3; Pet. Ex. 7 at 4.
Walker was served with notice of parole revocation and rights on January 17, 2007. Pet. Ex. 1 (Notice of parole revocation). A probable cause hearing was held on January 31, 2007. Pet. Ex. 4 (Summary of probable cause hearing). Walker refused to appear. Id. at 3. The board found good cause to support the alleged parole violations, and set the matter for a full revocation hearing.*fn1 Id. at 1. A parole revocation hearing was held on February 20, 2007. Pet. Ex. 9 at 1 (Summary of parole revocation hearing). Walker was represented by counsel. Id. Walker's parole agent and the reporting agent from the Fresno police department appeared and gave testimony. Id. at 3, 5. Canada failed to appear, as did several other non-adverse witnesses subpoenaed by Walker. Id. Due to Canada's absence, Walker's parole officer and the Fresno police officer related her statements made on the day of incident. Id. at 5. The hearing officer overruled Walker's counsel's hearsay objection, finding that the government had good cause for failing to produce Canada and citing United States v. Comito. 177 F.3d 1166 (9th Cir. 1999). Pet. Ex. 9 at 5. The hearing officer found Walker guilty of all three parole violation charges, revoked his parole and assessed a term of eleven months. Pet. Ex. 9 at 3.
Walker timely filed a petition for a writ of habeas corpus in the Fresno District Court, which was denied on April 20, 2007. Ans. Ex. 9 (Superior court petition and order). He filed a petition in the California Court of Appeal, which was summarily denied on June 7, 2007. Ans. Ex. 10 (California Court of Appeal petition and denial). Walker filed a petition for review in the California Supreme Court, which was summarily denied on August 15, 2007. Ans. Ex. 11 (California Supreme Court petition and denial). In its denial, the court cited In re Swain, 34 Cal. 2d 300, 304, 209 P.2d 793, 796 (1949), and People v. Duvall, 9 Cal. 4th 464, 474, 886 P.2d 1252, 1258 (1995). Id. Walker timely filed his § 2254 petition on August 30, 2007.
Walker's Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, a federal court may grant the Petition only if Walker demonstrates that the state court decision denying relief was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "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)(1) & (2).
When, as here, the California Supreme Court summarily denies a petition, this court "looks through" to the last reasoned state court decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)). Where the state courts have not addressed an issue in dispute in any reasoned opinion, the federal court will independently review the record to determine whether the state court clearly erred in its application of controlling federal law. Hernandez v. McGrath, 595 F. Supp. 2d 1111, 1122 (E.D. Cal. 2009), see additionally Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853.
A. Walker Exhausted his State Court Remedies
Respondent contends that Walker has not exhausted his state court remedies because the California Supreme Court cited Swain and Duvall in its denial of his petition. Denials based on Swain and Duvall indicate that a petitioner has failed to comply with the requirement that he "allege with sufficient particularity the facts warranting habeas relief." King v. Roe, 340 ...