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 Monterey, following his conviction by plea of guilty to first degree murder in violation of Cal. Penal Code § 187 with a weapon enhancement. See Petition at 3. On January 5, 1981, Petitioner was sentenced to serve an indeterminate term of twenty-five years to life in state prison with the possibility of parole. Id.
On September 10, 2007, a parole suitability hearing was held before the California Board of Parole Hearings ("Board") to determine Petitioner's eligibility for parole. (HT*fn1 at 1.) Petitioner attended the hearing and was represented by an attorney. (HT at 1-2.) At the conclusion of the hearing, the Board denied parole and deferred rehearing for three years. (HT at 113.)
On May 30, 2008, Petitioner filed a petition for writ of habeas corpus in the Monterey County Superior Court. See Answer, Exhibit A. On July 25, 2008, the petition was denied in a reasoned decision. See Answer, Exhibit B. Petitioner then filed a habeas petition in the California Court of Appeals, Sixth Appellate District. See Answer, Exhibit C. The petition was denied on August 21, 2008. See Answer, Exhibit D. On September 19, 2008, Petitioner filed a petition for review in the California Supreme Court. See Answer, Exhibit E. On March 18, 2009, the petition was denied. See Answer, Exhibit F.
On April 22, 2009, Petitioner filed the instant federal petition for writ of habeas corpus. The petition challenges the 2007 decision of the Board of Parole Hearings denying parole. Petitioner contends the Board of Parole Hearings violated his due process rights in denying him parole based on unchangeable factors. He argues the decision bears no nexus to his current risk of danger to public safety. On July 20, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse to Respondent's answer on October 8, 2009.
On September 27, 1980, at 12:04 a.m., the Salinas Police were dispatched to Chinatown to investigate a possible homicide. In a vacant lot at 37 Soledad Street they discovered an unconscious victim, Dominador Sagun, with a single stab wound to his chest. Sagun died within an hour without regaining consciousness.
Two male witnesses indicated they observed two Puerto Rican males approach the victim who had been sitting in his car. Both suspects grabbed Sagun and pulled him from the car. Both suspects hit Sagun. Both witnesses could not identify any weapons. The confidential informant immediately told police that Petitioner and Ernest Quinones were suspects. The informant also indicated that Petitioner had a knife. The police arrested Petitioner and Quinones one block from the crime scene at 12:30 a.m. Petitioner dropped a lettuce knife with blood on it as the police approached the suspects.
At 3:15 p.m., Ernest Quinones made a statement to the police. Quinones indicated that Petitioner had killed the victim with a knife and had taken his wallet and watch. Quinones claimed he was unaware that Petitioner was planning a robbery and denied any involvement in the struggle.
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 ...