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
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") following his conviction for first degree murder. Petitioner was sentenced to 25 years to life, which commenced on March 16, 1993. Petitioner does not challenge the validity of his judgment; rather, he challenges the Board of Parole Hearings' (hereinafter "Board") 2008 decision finding him unsuitable for parole. Petitioner contends the Board's decision resulted in a violation of his due process rights.
On October 23, 2008, Petitioner filed a state petition for writ of habeas corpus in the California Superior Court for the County of Riverside, challenging the 2008 Board decision. (Exhibit A, to Answer.) The petition was denied on October 31, 2008, on the ground that the "Board of Prison Terms had some evidence upon which to deny parole to Petitioner." (Exhibit B, to Answer.) Petitioner then raised the same claims in the California Court of Appeal and California Supreme Court. (Exhibits C, D, E & F.) Both petitions were summarily denied. (Exhibits D & F.)
Petitioner filed the instant federal petition for writ of habeas corpus on March 18, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on May 26, 2009,and Petitioner filed a traverse on July 1, 2009. (Court Docs. 11, 14.)
The commitment offense began with the victim's wife, Wanda Jones Jowers, was soliciting to have her husband, Clarence Rufus Jowers, murdered. Wanda was afraid that her husband was going to sell the trucking company he owned or divorce her. In late December 1986, she approached an ex-employee, Terry Pierce, and paid him $1,250 to hire a hitman, Lee Phillip, and agreed to pay him another $1,250 after the murder was complete. The plan was not carried out. Therefore, Wanda hired Jerry Moore and Petitioner, both employees of her husband's trucking firm, to kill her husband. She paid Moore $500 and Lawrence $300 for their involvement. The men believed that Mr. Jowers was causing problems for everyone and needed to be stopped. The two came up with a plan and agreed on the execution. Moore borrowed a Winchester 20 gauge shotgun from a friend, which he put on a truck bed owned by the trucking company. Michael Armantrout was a witness and owned the gun utilized during the murder. Armantrout told authorities that he was present at Moore's house when Moore and Petitioner discussed the murder. On the night of the murder, Moore, who was manager of the trucking company called Petitioner and told him to meet him at the truck yard because they had work to do. The victim had arranged to sell two vehicles, a blue Cadillac and a Peterbilt truck, to individuals who were going to drive the vehicles over the border to Mexico. The three men drove the vehicles to a point approximately 200 feet from a highway in Riverside County. Petitioner placed the shotgun on his lap. Moore walked to the victim's car and informed him that there was a problem with the truck Petitioner was driving. The victim walked over to the truck and as he approached was shot twice, once in the right upper chest and once in the stomach. Petitioner and Moore fled the scene. Both men currently maintain that the other was responsible for the murder of Clarence Jowers. (Exhibit A, Attachment No. 1, to Answer, at 8-10.)
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 and Rehabilitation 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 ...