The opinion of the court was delivered by: Gary S. Austin 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 pursuant to a judgment of the Superior Court of California, County of Los Angeles, following his conviction by plea of guilty to second degree murder in violation of Cal. Penal Code § 187. See Answer, Exhibit 1. On June 10, 1992, Petitioner was sentenced to serve an indeterminate term of sixteen years to life in state prison with the possibility of parole. Id.
On February 27, 2007, a subsequent parole suitability hearing was held before the California Board of Parole Hearings ("Board") to determine Petitioner's eligibility for parole. See Petition, Exhibit A. Petitioner attended the hearing and was represented by an attorney. Id. At the conclusion of the hearing, the Board denied parole and deferred rehearing for one year. Id. at 78-82.
On January 10, 2008, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court. See Answer, Exhibit 2. On April 10, 2008, the petition was denied in a reasoned decision. Id. Petitioner then filed a habeas petition in the California Court of Appeals, Second Appellate District, on November 3, 2008. See Answer, Exhibit 3. The petition was denied on November 6, 2008. Id. On November 19, 2008, Petitioner filed a petition for review in the California Supreme Court. See Answer, Exhibit 4. On January 14, 2009, the petition was denied. Id.
On February 3, 2009, Petitioner filed the instant petition for writ of habeas corpus in this Court. The petition challenges the 2007 decision of the Board of Parole Hearings denying parole. Petitioner contends: 1) the Board failed to provide him with individualized consideration when it based its decision on acts he did not commit; 2) a parole decision based on the circumstances of the offense rather than an individual's actions is unconstitutional; 3) the Board's decision was not supported by "some evidence"; 4) the Board's continued reliance on the commitment offense is ineffective and dangerous; 5) his second degree murder does not indicate unsuitability because it was not especially heinous, atrocious or cruel; and 6) there is no evidence that Petitioner is a current risk to society. On May 6, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse to Respondent's answer on May 28, 2009.
On October 19, 1991, at 1014 North Main Avenue, Wilmington, a witness was interviewed and related the following: He had observed a tan Monte Carlo or Regal coming south on Main Avenue with the passenger, David Neisinger, sitting in the right side window area. The passenger was leaning over the top of the car holding a handgun with both hands and pointing at a group of people on the east side of the street. At this point, the passenger yelled, "West Wilmas Locos" and began firing at the group of people. The car continued south on Opp Street while the passenger climbed back into the front passenger seat. The car turned right on Opp and sped away.
At 1:00 a.m. on the same date, police officers on patrol were traveling in a police vehicle on Opp Street when they heard several gunshots coming from the northeast corner of Main Avenue and Opp Street, one block east of their location. The officers immediately observed a brown Cutlass turn right from southbound Main Avenue to eastbound Opp Street. Petitioner and Neisinger were taken into custody.
During a crime scene investigation, officers recovered a nine-millimeter automatic pistol thrown under a parked vehicle located on the north side of Opp Street, west of Main and east of the alley utilized by Petitioner and Neisinger. That location was approximately where officers first observed Petitioner and Neisinger's vehicle fleeing from the scene. The victim, Arnulfo Rodarte, was observed by police lying supine on the sidewalk with a single gunshot wound to the left side of his chest. There was a large pool of blood on the ground near the victim's shoulder and head. A rescue ambulance was requested and the victim failed to respond to treatment and was pronounced dead at 1:20 a.m. by paramedics.
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 ...