The opinion of the court was delivered by: Sandra M. Snyder 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 and Rehabilitation following his conviction in 1981 for first degree murder. He is serving a sentence of 25 years to life.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Governor's 2005 decision denying him parole. He contends the Governor's decision violated his due process rights.
In 2005, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court. (Exhibit A, to Answer.) The superior court denied the petition finding in a reasoned decision that there was some evidence to support the Governor's decision. (Exhibit D, to Answer.)
Petitioner then raised his claims to the California Court of Appeal and California Supreme Court. (Exhibits E, F, G & H, to Answer.) The Court of Appeal denied the petition in a reasoned decision, stating that "based on the record that is submitted there is some evidence to support the challenged decision." (Exhibit F.) The California Supreme Court summarily denied the petition. (Exhibit H.)
Petitioner filed the instant petition for writ of habeas corpus on February 3, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on May 27, 2009, and Petitioner filed a traverse on June 22, 2009. (Court Docs. 12, 13.)
On September 9, 1980, Petitioner and three accomplices robbed a market at gunpoint. During the robbery, one of Petitioner's accomplices shot the store clerk in the head, killing him. Petitioner also shot the customer he was holding at gunpoint when he made a movement toward the clerk, striking him in the side. One of the accomplices emptied the cash drawer, and the group fled the scene. Although the store clerk died, the customer was treated for his injuries and survived. (Exhibit D, to Answer.)
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 ...