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 pursuant to a judgment of the Superior Court of California, County of Los Angeles, following his conviction by plea of guilty on March 4, 1982, to second degree murder in violation of Cal. Penal Code § 187. See Petition at 2. Petitioner was sentenced to serve an indeterminate term of fifteen years to life in state prison with the possibility of parole. Id.
On September 15, 2006, a subsequent parole suitability hearing was held before the California Board of Parole Hearings ("Board") to determine Petitioner's eligibility for parole. See Hearing Transcript attached as Exhibit 1 to Petition (hereinafter "Transcript"). Petitioner attended the hearing and was represented by his attorney. Id. At the conclusion of the hearing, the Board denied parole and deferred rehearing for one year. Id. at 68.
Petitioner sought relief in the state courts by filing petitions for writ of habeas corpus in the superior court, appellate court, and California Supreme Court. See Exhibits 1, 3 and 5, Answer. The superior court denied the petition in a reasoned opinion. See Exhibit 2, Answer. The appellate court and California Supreme Court summarily denied the subsequent petitions. See Exhibits 4 and 6, Answer.
On December 18, 2008, Petitioner filed the instant petition for writ of habeas corpus in this Court. The petition for writ of habeas corpus challenges the 2006 decision of the Board denying parole. On July 8, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse to Respondent's answer on September 9, 2009.
On February 13, 1981 at approximately 10:00 p.m., the victim, David Lee Nixon, was riding his bicycle on 84th Place approaching Avalon Boulevard in central Los Angeles when Petitioner, who was with three people at the time, called him over to the curb. During the conversation, Petitioner asked Nixon if he was a Crip, to which Nixon responded in the negative. According to witnesses, Petitioner told the victim that he had seen him gang banging since he left Fremont High, which the victim denied. Petitioner then told Nixon that he could "Get on," and as Nixon was riding away on his bicycle, Petitioner pulled out a.22-caliber handgun from his waistband and fired five times, striking Nixon once in the back of the head. Petitioner fled after the shooting.
Nixon was transported to Martin Luther King Hospital. He was not identified, he was unconscious, and he could make no statement. He sustained a gunshot wound to the back of the head and was placed on life support systems. He died four days later.
Subsequent to the shooting, officers received an anonymous phone call that members of the Swans were responsible for the killing. Petitioner, whose street name is Puppet, was identified as the shooter and reportedly bragged about the killing, alleging, "I shot me a nigger, I shot me a Crip." Petitioner was subsequently booked on a murder warrant in county jail.
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 ...