The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner Martin Killingsworth is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of attempted murder in the first degree and assault with a firearm in Sacramento County Superior Court on June 15, 1994, and sentenced to an indeterminate term of life with the possibility of parole. (See Docket 9, Exhibit 1 at 1-2.) Petitioner was also subsequently convicted of possession of a controlled substance for sale with a weapons enhancement on July 21, 1994. (See id. at 2.) Petitioner has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging the 2006 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1
Respondent has filed an answer to the petition together with relevant portions of the state court record, and petitioner has filed a traverse in response to the answer. The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends the petition be denied and this action be dismissed with prejudice.
During the hearing, the Board relied upon the description of the offense set forth by the California Court of Appeal. (See Dkt. 1, Ex. A at 7.) The victim in this case, David Jones, was at the Sutter Memorial Hospital in Sacramento to receive treatment for his hand, which had been injured in a fight at his house the day of the shooting. (See id. at 8.) The victim's girlfriend, Diane Matteson, and the estranged girlfriend of the defendant, Marie Bell, accompanied the victim to the hospital. (See id.) Matteson and Jones were also acquainted with petitioner. (See id.) Petitioner arrived at the hospital and began arguing with Bell, at which time the victim told petitioner to leave because he was troubling Matteson. (See id.) Outside the emergency room, Bell hid from petitioner in some bushes while the victim and Matteson called security for help. (See id.) The hospital security guard responded, and as he drove to the emergency room he saw a man in the hospital parking lot pushing a white Toyota Celica through the lot. (See id.) The security guard got a good look at the man from approximately five to eight feet away, and he identified him at trial as petitioner. (See id.) When the guard found Bell hiding in the bushes, she asked him, in a panic, whether he had seen a man pushing a car. (See id.) The guard then drove Bell to Matteson's car. (See id.)
As the victim, Matteson, and Bell drove away from the hospital together, Bell hid from petitioner by lying down in the backseat. (See id. at 8-9.) Petitioner was sitting in his car at the end of the street, waiting for Matteson's car to exit the hospital parking lot. (See id. at 9.) A chase ensued, and then ended when petitioner blocked Matteson's car from entering an intersection. (See id.) The victim got out of Matteson's car and approached petitioner's vehicle. (See id.) According to Matteson's testimony at trial, she saw petitioner point a handgun at the victim and fire. (See id.) After the victim fell to the ground, and started to crawl away, while holding his chest, petitioner fired two or three more shots at the victim. (See id.) The victim's testimony confirmed Matteson's account of the crime. (See id.) On the night of the shooting, Bell also told a Sacramento Police Officer that petitioner had shot the victim. (See id.) At trial, however, after Bell had reconciled with petitioner and started living with him, she denied having lifted her head up from the backseat. (See id. at 9-10.) Petitioner denied having shot the victim, and testified that he was out of town on the night of the shooting. (See id. at 10.)
Petitioner, through counsel, declined to discuss the details of the offense with the panel during the hearing. (See id. at 4-5.) The Board, however, read into the record an account of the crime given by petitioner during an interview on April 13th, 2004. (See id. at 10-13.) Petitioner stated that he was trying to locate Bell on the day of the shooting, and was told that Bell had driven the victim to the hospital. (See id. at 11.) Earlier that day, the victim had come to petitioner's home and accused him of pouring acid on Bell. (See id.) After petitioner "[s]hined them on," the victim allegedly threatened to "take out" petitioner in the future. (See id.) At the hospital that evening, after petitioner searched and waited for Bell, Matteson and the victim cut off petitioner's vehicle as he attempted to exit the hospital parking lot. (See id. at 12.) Matteson and the victim exited their car, and the victim began hitting petitioner in his car with a metal rod. (See id.) After the two alleged assailants got back in their vehicle and drove towards the hospital, petitioner started towards his home. (See id.) While stopped at an intersection in his vehicle, Matteson's car pulled up behind his and the rear window of his vehicle shattered. (See id.) Thinking that the victim had fired a gun at him, he fired three rounds through the window at Matteson's vehicle and drove home. (See id.) He later discovered that the window had been shattered by a baseball bat, and turned himself in to police with an attorney. (See id.) Petitioner also claimed he would have turned himself in to police earlier, but at the time of the offense he was in possession and under the influence of marijuana. (See id. at 13.)
Petitioner was convicted by a jury of attempted murder in the first degree and assault with a firearm with two weapons enhancements on June 15, 1994, in the Sacramento County Superior Court. (See Dkt. 9, Ex. 1 at 1.) He was sentenced to an indeterminate term of life with the possibility of parole. (See id.) Petitioner was also subsequently convicted of possession of a controlled substance for sale with a weapons enhancement on July 21, 1994, and given a two-year sentence that runs concurrently with his life sentence. (See id. at 2.) Petitioner's minimum eligible parole date was set for January 28, 2001. (See Dkt. 1, Ex. A at 1.) The parole denial which is the subject of this petition took place after a parole hearing held on May 31, 2006. (See id.) This was petitioner's fourth parole consideration hearing. (See id. at 3.) As of the date of the 2006 parole hearing, petitioner was forty-six-years-old, and had been in custody approximately eleven years. (See id., Ex. E at 1.)
After denial of his 2006 application, petitioner filed habeas corpus petitions in the Sacramento County Superior Court, California Court of Appeal, and California Supreme Court. (See Dkt. 9, Exs. 6-8.) Those petitions were unsuccessful. (See id.) This federal habeas petition followed. Petitioner contends the 2006 denial by the Board violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not challenge the validity of his conviction, but instead challenges the Board's 2006 decision finding him unsuitable for parole.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "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) and (2).
As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be [objectively] unreasonable." Id. at 411.
In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).
Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993)).
IV. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS
A. Due Process Right to be Released on Parole
Under the Fifth and Fourteenth Amendments to the United States Constitution, the government is prohibited from depriving an inmate of life, liberty or property without the due process of law. U.S. Const. amends. V, XIV. A prisoner's due process claim must be analyzed in two steps: the first asks whether the state has interfered with a constitutionally protected liberty or property interest of the prisoner, and the second asks whether the procedures accompanying that interference were constitutionally ...