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 serving an indeterminate sentence of twenty-five years to life for his 1981 conviction in the Los Angeles County Superior Court for first degree murder with a deadly weapon enhancement. (Pet. at 2.)
On May 31, 2006, 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 two years. (HT at 81.)
On December 15, 2006, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court. See Answer, Exhibit 2. On August 21, 2007, the petition was denied in a reasoned decision. See Answer, Exhibit 3. Petitioner then filed a habeas petition in the California Court of Appeals, Second Appellate District. See Answer, Exhibit 4. The petition was summarily denied on January 24, 2008, with citation to In re Dannenberg, 34 Cal.4th 1061, 1070-71 (2005) and In re Rosenkrantz, 29 Cal.4th 616 (2002). See Answer, Exhibit 5. On February 21, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. See Answer, Exhibit 6. On August 13, 2008, the petition was summarily denied. See Answer, Exhibit 7.
On August 28, 2008, Petitioner filed the instant federal petition for writ of habeas corpus. The petition challenges the 2006 decision of the Board of Parole Hearings denying parole and the 2005 decision of the Governor denying parole. On January 12, 2009, Respondent moved to dismiss all claims challenging the Governor's 2005 decision as untimely. On April 24, 2009, the District Court adopted the undersigned's Findings and Recommendation and granted Respondent's motion to dismiss. On June 22, 2009, Respondent filed an answer to the petition with respect to those claims concerning the 2006 parole board decision. Petitioner filed a traverse to Respondent's answer on October 30, 2009.
On April 23, 1981, at Lincoln Park at the corner of Maddito and Workman Avenues in Los Angeles, Petitioner, known as "Torito," along with other members of the "Clover Street Gang," were visiting when the victim, Johnny Leyva, age 15 years, drove up on his motorcycle. After some discussion, Mr. Leyva agreed to drive one of the other individuals that was there to the liquor store to purchase some beer. While they were gone, Petitioner was advised by someone that Mr. Leyva had informed or given testimony against a Clover Street Gang member. Petitioner advised the person standing there that he would "take care of that." Petitioner asked his co-defendant, Leonard Aguilar, for his knife. When Mr. Leyva returned from the liquor store and was standing in the street, Petitioner walked up to him and put his arm across his shoulder and stabbed Mr. Leyva in the neck and chest area. Mr. Leyva ran a short distance from the scene, collapsed and died. Co-defendant Aguilar was interviewed by the probation officer, declined to give any information regarding the activities of Petitioner, and in fact, took the full blame for the stabbing himself, indicating that he had committed the offense with his own knife. Witnesses to the act, however, when interviewed, unanimously agreed that Petitioner had been the individual who inflicted the fatal wounds to the victim.
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 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 his 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 light ...