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 in the custody of the California Department of Corrections and Rehabilitation ("CDCR") following his 1990 conviction for second-degree murder. (Exhibit 1, to Answer.) Petitioner was sentenced to fifteen years-to-life in prison. (Id.)
On September 24, 2007, Petitioner filed a state petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the Board of Parole Hearings' ("Board") July 27, 2006 decision finding him unsuitable for parole. (Exhibit 2, to Answer.) The superior court denied the petition, finding that the Board's decision was supported by "some evidence" under California law. (Exhibit 3, to Answer.) Petitioner presented the same claims to the California Court of Appeal and California Supreme Court which were both denied without comment or citation. (Exhibits 4-7, to Answer.)
Petitioner filed the instant federal petition for writ of habeas corpus on September 8, 2008, in the United States District Court for the Central District of California. (Court Doc. 1.) On September 9, 2008, the petition was transferred to this Court. (Court Doc. 3.) Respondent filed an answer to the petition on January 7, 2009, and Petitioner filed a traverse on January 29, 2009. (Court Docs. 15, 16.)
On November 19, 1988, at approximately 1:00 a.m. officers of the Los Angeles County Sheriff's Department received a call regarding an assault with a deadly weapon and gunshots being fired. The officers arrived at the location of Sunkist Avenue and Beckner Street. When the officers arrived they observed the victim lying on her back and saw what appeared to be a gunshot wound in her upper left arm. The projectile appeared to have exited the left arm and entered the left side of the body. Paramedics attempted to resuscitate the victim at the scene but were not able to do so. The victim was subsequently transported to Terrace Plaza Hospital where she was examined and pronounced dead at 3:55 a.m. Law enforcement investigation revealed that Petitioner and Jose Parada were responsible for the shooting and were arrested shortly thereafter.
During an interview conducted on October 15, 2003, Petitioner stated that on the evening of November 18, he walked from his house to a party a block and a half away. Petitioner was sixteen-years-old at the time. While at the party, Petitioner was asked by Jose Jesus Parada and Gilbert Temoco for a ride home. Petitioner borrowed a Mazda extended cab pickup with a camper shell on it to give them a ride home across town. Petitioner had met Parada and Temoco approximately a week before the night of the party. During the ride, Parada sat in the front seat and Temoco sat sideways on the back seat. Temoco had a 22-caliber rifle which he held close to the floor next to the base of the seat. Petitioner turned from Tomar Street-the location of the party-onto Beckner Street. As he drove toward Sunkist Avenue, he saw a station wagon parked on the side with a group of people standing behind it. As he was driving past them he heard Temoco say, "I am going to shoot," and then he heard a shot. When he looked in the rear view mirror, he saw Temoco sitting with the barrel of the rifle pointing out the rear window of the truck, and he fired the shot through the open back window of the camper shell toward the station wagon. Petitioner could see in the rear view mirror that people were running and he heard Temoco say, "I got somebody." Petitioner was scared and panicked and must have speeded up because the guys told him to slow down. Petitioner stated that he did not know what to do so he dropped Parada and Temoco on the corner of Main and Third Street, then went home. Petitioner knew the victim, Yvonne Ruiz from high school, and believed she was 16 or 17 years old when she was killed. Petitioner stated that he is the one to blame for the death of Yvonne because had he stopped the car before the reached they victim, she would still be alive.
On February 20, 2006, Petitioner amended his version of the incident as follows: Jose, Gilbert, and myself are to be blamed for the death of Yvonne. All three of us had a part in her death. If I had stopped the car she would probably be alive today.
(Exhibit 2, Attachment A, to Answer, at 7-10.)
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 ...