FINDINGS AND RECOMMENDATIONS
Petitioner Carl Thomas Henderson 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 serving an indeterminate sentence of twenty seven years to life following his conviction in Los Angeles County for first degree murder with use of a firearm. The pending petition challenges the execution of that sentence, and specifically, the May 30, 2007 decision of the Board of Parole Hearings ("Board") finding petitioner unsuitable for parole.
The facts of petitioner's life crime were summarized by the Los Angeles County Superior Court on state habeas corpus review:
[O]n August 25, 1981, petitioner was involved in a gang confrontation between the Pirus, of which his cousin was a member, and the Crips. Petitioner spent the day drinking in front of his cousin's apartment complex, although he claims that he was not drunk. A neighbor gave him a shotgun in the late afternoon. That evening, the group entered a van to find the Crips. According to a witness who was with the group, petitioner and one other individual were armed with shotguns. Another witness testified that petitioner shot the first shot at the Crips members in the direction of the victim, who was riding a bicycle at the time. The victim fell off the bike and attempted to hide, but was shot by a Pirus member. He died as a result of multiple gun shot wounds. Petitioner stated that he was not a member of the gang, but was around them often because of his cousin. At the time of the offense, the Crips believed that petitioner's cousin was involved in the killing of one of their members.
(Resp. Ex. 2 at 1.) Police apprehended the van and its occupants; petitioner was among them and was arrested at that time. (BPHT at 15.*fn1 ) A jury found him guilty of first degree murder with use of a firearm. Petitioner was sentenced to an indeterminate term of twenty seven years to life in state prison. His minimum eligible parole date passed in November of 1999.
On May 30, 2007, a panel of the Board conducted a hearing to determine petitioner's suitability for parole.*fn2 At the hearing, petitioner denied shooting the victim and further denied being in the van at the time of the shooting. (BPH Transcript at 15.) Petitioner stated that he was inside his aunt's apartment, which was down the street, when he heard the gunshots. (BPHT at 13-14.) Petitioner indicated that he was aware at the time of a dispute between his cousin and members of the Crips gang. (BPHT at 13.) Petitioner stated that, after the shooting, his cousin and the others picked him up in the van and he went with them because he was afraid. (BPHT at 16.)
After considering various positive and negative suitability factors, including the nature of the commitment offense, the panel concluded that petitioner would pose an unreasonable risk of danger to society if released, and thus that he was not suitable for parole. Petitioner sought habeas corpus relief in the Los Angeles County Superior Court. The petition was denied; the superior court held that some evidence supported the Board's decision. (Resp. Ex. 2 at 2.) Petitioner sought relief in the state appellate courts. The California Court of Appeal denied the petition without setting forth a reasoned explanation and the California Supreme Court denied review. (Resp. Ex. 4 & 6.)
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) 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
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application ...