The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
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 serving a term of fifteen years to life, following his March 9, 1990 conviction for second degree murder. In the instant petition Petitioner does not challenge his underlying conviction; rather, he challenges the Board of Parole Hearings' (hereinafter "Board") February 7, 2007 decision finding him unsuitable for parole. Petitioner contends that the Board's reliance on the immutable circumstances of his commitment offense violates his due process rights; the Board's decision was not supported by some evidence; the Board did not make an individualized assessment and consideration of all factors which support the finding of suitability; the Board's decision was arbitrary and capricious; and the regulations relied on by the Board are unconstitutionally vague as applied in this instance.
Petitioner filed a state petition for writ of habeas corpus in the Contra Costa County Superior Court challenging the Board's decision on the same grounds raised in the instant petition. (Answer, Exhibit A.) On February 28, 2008, the Superior Court denied the petition in a reasoned decision. (Answer, Exhibit B.)
Petitioner also filed a state petition in the California Court of Appeal challenging the Board's 2007 decision, which was summarily denied. (Answer, Exhibits C, D.)
Thereafter, Petitioner filed a state petition in the California Supreme Court, which was also summarily denied. (Answer, Exhibits E, F.)
Petitioner filed the instant federal petition for writ of habeas corpus on December 29, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on April 7, 2009, and Petitioner filed a traverse on May 7, 2009. (Court Docs. 11, 12.)
On November 30, 1988, Petitioner and a friend arrived at the residence of Heather LaRue, who had been evicted from her residence due to her alleged use of drugs and had requested assistance from several of her friends, including Petitioner, in order to help her move. When Petitioner arrived at the LaRue residence, a group of LaRue's friends were gathered outside the residence. During the wait, the members of the group became boisterous. Some of them had been drinking beer and tampered with the fire extinguisher. Petitioner arrived with a duffel bag containing a chef's knife with a ten-inch blade. Petitioner compared his knife to a Buck knife owned by one of the persons in the group and commented that his knife was much larger than the Buck knife and it might be necessary to use it should trouble develop. Petitioner put his duffel bag into his friend's car but retained possession of the knife in the waistband of his pants. At one point in time, one of the residents of the apartment complex came outside and asked the group to leave. The group refused and a fight ensued between one of the residents and one of LaRue's friends. Chad Dixon, a resident of the complex, argued with Petitioner. Petitioner responded by pulling out a knife from his waistband. A struggle erupted between Petitioner and Dixon. Dixon attempted to hold Petitioner against a wall to prevent him from using the knife; however, he managed to get free and began stabbing Dixon several times who had fallen when he attempted to get away. The stabbing began in the legs and proceeded up to the torso then chest area, and the victim was ultimately stabbed 40 times, 14 of which were serious. Petitioner and his friend fled the scene and called a friend to give them a ride. The two hid the knife in a tree across from a Mervyn's Department Store in Sun Valley, California. The victim was left sprawling on his back with multiple stab wounds throughout his body. When emergency crews arrived, he was unconscious and had no pulse. Upon arrival at the hospital he was pronounced dead at 10:14 p.m.
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 filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.
Petitioner is in custody of the California Department of Corrections pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for his habeas petition because he meets the threshold requirement of being in custody pursuant to a state court judgment. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir.2006), citing White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004) ("Section 2254 'is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging [her] underlying state court conviction.'").
The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "resulted in a decision that was based on an unreasonable determination of the facts in light ...