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 second degree murder. Petitioner was sentenced to life with the possibility of parole. 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.
Petitioner filed a state court petition in the San Francisco Superior Court challenging the 2007 Board decision. (Exhibit A, to Answer.) The superior court denied the petition finding some evidence to support the Board's decision. (Id.)
Petitioner then filed a state petition in the California Court of Appeal, First Appellate District. (Exhibit B, to Answer.) The petition was denied because the court had previously rejected the claim that the denial of parole violated Petitioner's plea agreement and Petitioner failed to state "a prima facie case for relief" with respect to the other claims. (Id.)
Petitioner also filed a state petition in the California Supreme Court, which was summarily denied. (Exhibit C, to Answer.)
Petitioner filed the instant federal petition for writ of habeas corpus on September 26, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on March 27, 2009, and Petitioner filed a traverse on April 30, 2009. (Court Docs. 16, 17.)
On October 15, 1982, Petitioner met with the victim who asked him if he had a place to stay. They decided to rent a motel room and the victim wanted to engage in homosexual acts with Petitioner. The two went to a store downstairs from the room where the victim bought Petitioner a sandwich and a beer. They returned to the hotel room and went to bed. Petitioner believed the victim was asleep and tried to take his wallet from his pants. The victim woke up and grabbed Petitioner. A struggle ensued and when the victim gained the upper hand, Petitioner stabbed the victim multiple times with a pocket knife and fled the scene. The next day, the manager of the hotel complex found the victim dead on the floor covered with blood. Medical reports demonstrated that the victim died from multiple stab wounds, transecting of the internal jugular vein and the left common artery. Petitioner was not apprehended by police until several months later.
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 ...