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 murder with use of a firearm. Petitioner was sentenced to life with the possibility of parole, plus a seven years sentence enhancement. Petitioner does not challenge the validity of his judgment; rather, he challenges the Board of Parole Hearings' (hereinafter "Board") 2007 decision finding him unsuitable for parole. Petitioner contends the Board's decision resulted in a violation of his due process rights.
On May 16, 2008, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, challenging the Board's 2007 decision. (Exhibit 1, to Answer.) The superior court denied the petition on July 10, 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 association with drugs, and institutional behavior. (Id.)
Petitioner raised the same claims to the California Court of Appeal and California Supreme Court. (Exhibits 3 & 5, to Answer.) Both petitions were summarily denied. (Exhibits 4 & 6, to Answer.) In such circumstances, this Court "looks through" that decision and presumes it adopted the reasoning of the Los Angeles County Superior Court, the last state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (establishing, on habeas review, "look through" presumption that higher court agrees with lower court's reasoning where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir.2000) (holding federal courts look to last reasoned state court opinion in determining whether state court's rejection of petitioner's claims was contrary to or an unreasonable application of federal law under § 2254(d)(1)).
Petitioner filed the instant petition for writ of habeas corpus on May 11, 2009, in the United States District Court for the Central District of California. (Court Doc. 1.) By order filed on May 19, 2009, the petition was transferred to this Court. Petitioner contends that there was insufficient evidence to determine that he remains an unreasonable risk to public safety if released and the Board unreasonably relied on the circumstances of his commitment offense.
Respondent filed an answer to the petition on August 21, 2009, and Petitioner filed a traverse on September 15, 2009. (Court Docs. 18, 19.)
Petitioner, along with co-defendant Cayamendo and five others (Simangan, Oplac, Mendoza, Fontilea, and Obrique) were members of the "Long Beach Local Boys" gang. Previously, some of the members of a rival gang, the "Scott Royal Brothers Gang" had done a drive by shooting and the petitioner and his associates decided to retaliate. On September 4, 1990, Fontilea drove one car with the Petitioner and Obrigue as passengers; the other four went in a second car. Oplac and Petitioner were armed with a shotgun and a handgun, and fired shots at the three members of the "Scott Royal Brothers Gang." Victim Emery Curamen suffered shotgun wounds to the right arm and lower back and the other two victims suffered no injuries. (Exhibit 2, to Answer, Opinion, at 1.)
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 ...