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 [Doc. 1]
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 incarcerated in the California Department of Corrections and Rehabilitation ("CDCR") following his conviction for attempted first degree murder. Petitioner was sentenced to life with the possibility of parole, plus a one year sentence enhancement. 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 July 9, 2008, Petitioner filed a petition for writ of habeas corpus in the San Bernardino County Superior Court, challenging the Board's 2008 decision. (Exhibit 1, to Answer.) The superior court denied the petition on July 17, 2008. (Exhibit 2, to Answer.) The court found there was some evidence to support the Board's conclusion that Petitioner was not suitable for parole. (Id.) The court cited the circumstances of the commitment offense, Petitioner's social history, prior criminal conduct, conduct while in prison, psychological report, and parole plans. (Id.)
Petitioner raised the same claims to the California Court of Appeal and California Supreme Court. (Exhibits 3 & 4, to Answer.) Both petitions were summarily denied. (Exhibits 5 & 6, to Answer.)
Petitioner filed the instant petition for writ of habeas corpus on May 11, 2009. (Court Doc. 1.) Petitioner contends that (1) the denial of parole suitability was arbitrary and capricious because there is no evidence to support the finding that he would pose an unreasonable risk of danger to public safety; (2) the parole suitability requirements have all been met; and (3) the Board has improperly changed his parole eligibility status as ordered by the court. Respondent filed an answer to the petition on July 21, 2009. (Court Doc. 16.) Petitioner did not file a traverse.
On September 6, 1993, officers were traveling southbound on Mount Vernon Avenue in San Bernardino. As the officer slowed for a red light, he heard approximately eight to ten gunshots just east of him on Ninth Street. He observed muzzle flashes coming from the south side of the street. As he approached, he could see several Hispanic males pulling weapons and pointing them at another Hispanic male, victim Emilio Acuna, on the south sidewalk. When the officer was within approximately 125 feet, the suspects turned and ran across the street and got into a large white Chrysler vehicle. The vehicle immediately began to accelerate at a high rate of speed without turning on the headlights. Officers pursued the vehicle and found it on a sidewalk, resting against a four-foot high chain link fence. Petitioner was observed running from the vehicle. Approximately thirty minutes later, Petitioner was located hiding in a doghouse. Emilio Acuna suffered several small pellet wounds to his face, chest, stomach, arms, and left fingers and legs, caused by a shotgun-type weapon.
(Exhibit B to Petition, Transcript at 11-12.)
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 ...