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 conviction for second degree murder. Petitioner is serving a sentence of fifteen years to life, plus a one-year firearm enhancement.
In the instant petition for writ of habeas corpus Petitioner does not challenge the constitutional validity of the judgment; rather, he challenges the Board of Parole Hearings' (Board) March 6, 2007 decision finding him unsuitable for release on parole.
On August 22, 2007, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court claiming that the Board's 2007 decision denying him parole violated his constitutional rights. (Exhibit 1, to Answer.)
On November 8, 2007, the superior court denied the petition in a reasoned decision. (Exhibit 2, to Answer.)
On February 4, 2008, Petitioner filed a petition in the California Court of Appeal, Second Appellate District. (Exhibit 3, to Answer.) On February 21, 2008, the appellate court denied the petition in reasoned decision citing In re Dannenberg, 34 Cal.4th 1061, 1070-1071 (2005) and In re Rosenkrantz, 29 Cal.4th 616 (2002). (Exhibit 4, to Answer.)
On April 10, 2008, Petitioner filed a petition in the California Supreme Court. (Exhibit 5, to Answer.) The petition was summarily denied on October 1, 2008. (Exhibit 6, to Answer.)
Petitioner filed the instant federal petition for writ of habeas corpus on November 21, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on February 19, 2009, and Petitioner filed a traverse on March 24, 2009. (Court Docs. 13, 16.)
On July 10, 1992, Petitioner was involved in a gang-related retaliation murder of Robert Reed. Petitioner and his crime partner, Leonicio Meraz, were retaliating for the murder of fellow gang member Jose Aguirre. At the time of the murder, Petitioner was a member of the Eighty Fourth Street Swan Gang. After Aquirre's murder there were rumors that the person responsible was a member of the rival gang Main Street Crips or East Coast Crips. At the scene of Aquirre's murder, police observed Meraz to be very upset and hostile over the murder, and made statements that he knew who did it and he would take care of it. Police observed Meraz leave with Petitioner and Mr. Pardo.
The next morning at approximately 12:50 a.m., officers heard four to five gunshots and observed Meraz running southbound with a gun in his hand. Officers ordered Meraz to stop but he did not comply. The officers observed Meraz throw a gun into a waiting car and hang onto the window as it drove off. It was later determined that Petitioner and Pardo were in the car. The officers went to the Daniel Freeman Hospital where Aquirre had been taken earlier in an attempt to locate Petitioner and his crime partners. At approximately 3:00 a.m., Petitioner, Meraz, and Pedro were found hiding in the bushes at the hospital and were detained by officers.
The investigation revealed that Meraz lured Robert Reed to his vehicle claiming he would sell him a dime bag of Cocaine. As Reed was approaching Meraz, he pulled out a gun and fired several shots striking him in several different places. It was found that Petitioner was armed during this incident and was ...