FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for one year at a parole suitability hearing held on May 16, 2007. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On September 8, 1982, an Orange County Superior Court jury convicted petitioner of first degree murder with use of a firearm. (Form Pet. at 2.) The trial court sentenced petitioner to an indeterminate term of twenty-seven years to life in state prison. (Id.)
The parole consideration hearing which is placed at issue in the instant petition was held on May 16, 2007. (Answer, Ex. 1 at Ex. C) (hereinafter "Decision"). On that date, a Board panel found petitioner not suitable for parole and denied him release on parole for one year. (Id.) Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Orange County Superior Court on January 16, 2008. (Answer, Ex. 1.) The Superior Court rejected petitioner's claims in a reasoned decision on the merits. (Answer, Ex. 2.)
On February 26, 2008, filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District. (Answer, Ex. 3.) That petition was summarily denied by order dated February 28, 2008. (Answer, Ex. 4.) Petitioner subsequently filed a petition for review in the California Supreme Court, which was summarily denied by order dated April 30, 2008. (Answer, Exs. 5 & 6.)
On June 2, 2008, petitioner commenced this action by filing a federal petition for writ of habeas corpus.
The Board described the facts of petitioner's offense at the May 16, 2007 parole suitability hearing as follows:
Records of the Westminster Police Department reflect that on October 10th, 1981 at approximately 11:37 p.m., officers were dispatched to an industrial complex located at 7125 Fenwick, spelled F-E-N-W-I-C-K, to investigate the occurrence of a probable homicide. Upon arrival at the location contact was made with the security guard who related that while making his rounds, he observed a pickup truck to be backed into one of the parking stalls and that both of the doors to the vehicle were open. He added that he shined his spotlight on the vehicle and observed the body of a male subject, later identified as 25 year old Van Hecke, to be lying in a pool of blood beside the vehicle.
It was determined that the victim had suffered at least two gunshot wounds to the torso and he had been dead since approximately 9:00 p.m. A considerable amount of blood was discovered at the scene, it was traced to a second pool of blood located approximately two feet east of the original one. Also, a company pickup truck was located approximately 25 feet west of the victim's vehicle and a large amount of blood was located on the front fender and hood, and another pool of blood was located six feet in front of the truck. A third pool of blood was located approximately 12 feet northwest of the victim's vehicle. Also, the officers noted that the glove box of the victim's vehicle was open, the brake was set, the hood and tires were cold to the touch and that the key was not in the ignition.
An autopsy was subsequently conducted and four gunshot wounds were evident from the victim's body. It was ascertained that the... victim had been shot in the back in a downward trajectory, once in the chest, upward trajectory, and once to the left kneecap, downward trajectory, and once to the right temple of the head, downward trajectory. A.38 caliber slug was removed from the victim's left leg and another one was removed from his throat. Hemothorax was determined to be the cause of death.
During the course of the subsequent investigation it was established that the victim was an employee of the Red Mustache Hair Salon, and that he had told another employee that he was going to sell an ounce of cocaine to an individual, later identified as Mr. Lucas, on that particular evening. The witness added that he was aware that the victim had, on previous occasions, sold cocaine to Mr. Lucas, and that he had referred to Mr. Lucas as, quote, flake [sic] that he did not trust, unquote. Further, the witness stated that the victim had told him that the only reason he was going to sell Mr. Lucas the cocaine was that he needed the money badly and that he would net 200 [sic] dollars from the sale.
The victim's brother attested to the fact that the victim had been trying to, quote, put together, unquote, a cocaine deal with Mr. Lucas for the past week, and that it involved an ounce of cocaine. In addition, he stated that he had heard his brother say that he did not trust Mr. Lucas. Eventually the brother alerted officers to the fact that an individual identified as Michael McMahon, common spelling, had supplied his brother with the cocaine that was to be sold to Mr. Lucas. McMahon was subsequently contacted and acknowledged that he had supplied the victim with cocaine on several occasions, usually in small amounts, and that on October 9th, 1982, the victim had asked him if he could get an ounce of cocaine. McMahon stated that he had agreed to do so, but the following day he learned from the victim that the deal had not been completed because Mr. Lucas' partner had gone to get his portion of the money in larger bills, and as a result the deal would be consummated after work.
McMahon stated that until that time he was unaware of the identity of the buyer, and that he told the victim to cancel the deal because he did not like, quote, the sound of it, unquote, and that he did not trust Mr. Lucas. McMahon explained that in the past Mr. Lucas had bought some cocaine from the victim and had failed to pay the full amount. In addition, he stated that he knew Mr. Lucas did not have the money to buy an ounce of cocaine. In addition, he maintained that he would never have agreed to provide the victim with the cocaine had he been made aware of the fact that Mr. Lucas was the buyer.
According to McMahon, the victim usually went to Mr. Lucas' house or Mr. Lucas would go to the victim's house to make the sales. He added that he could not think of any reason why the victim would go to an isolated location with Mr. Lucas. Finally, he stated that the victim generally carried cocaine, either in the glove compartment or in the compartment located in the driver's door of the vehicle, and that the cocaine which he had given the victim to sell to Mr. Lucas on that particular day was packaged in a clear cellophane bag.
In the meantime Mr. Lucas was contacted at his residence and he acknowledged that on October 10th, 1981, at approximately 5:00 p.m., he had met the victim for a beer at Pearl's Restaurant, common spelling. He added that he left the restaurant at approximately 5:30 p.m. and spent the remainder of the evening with his children. After he was informed that the victim had been found dead, Mr. Lucas admitted that he was supposed to have met the victim to buy some cocaine from him, but that he was unable to raise the money and was unable to locate a friend who was supposed to go into the deal with him. He stated that, as a result, he met the victim at the prearranged restaurant and told him what had transpired. Officers then obtained permission from Mr. Lucas to examine his vehicle and traces of blood were located on it. Mr. Lucas claimed that he had hit a dog a few days before, but later stated, quote, I might as well tell you the truth, unquote.
After being advised of his rights, Mr. Lucas related that he and the victim had arranged to meet at an industrial complex so that he, referring to himself, and a friend could buy an ounce of cocaine from the victim. Mr. Lucas stated, however, that as it turned out he could not locate his friend and could not raise the 1,900 dollars needed to purchase the cocaine. He stated that as a result he proceeded to the industrial complex to inform the victim that he could not buy the cocaine, and that when he arrived he noted that the victim was bleeding and had been shot. In parenthesis, at that point the investigating officer had not informed Lucas as to how the victim had been killed, end of parenthesis.
Mr. Lucas added that he became frightened and that he immediately left the location, and with regard to the blood in his vehicle, Mr. Lucas related that the victim had leaned on the car and that he, referring to himself, had tried to wash off the blood. Permission was obtained from Mr. Lucas to search his residence and he acknowledged ownership of a.22 caliber Derringer and a.44 caliber Magnum pistol, an antique.32 caliber pistol and a rifle. He maintained that there were no other weapons on the premises. The weapons in question were located along with.38 caliber ammunition and an empty holster for a two inch,.38 caliber pistol. A search warrant was subsequently obtained and a two inch,.38 caliber pistol, which was determined to be the murder weapon, was located in Mr. Lucas' garage. Also, several bags of marijuana and several vials of that was believed to be cocaine were retrieved from Mr. Lucas' residence. In addition, five marijuana plants were seized from Mr. Lucas' backyard.
(Decision at consecutive pgs. 15-22.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) 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
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...