The opinion of the court was delivered by: John W. Sedwick United States District Judge
MEMORANDUM DECISION and ORDER [Motion at Docket No. 18]
Petitioner Adonai El-Shaddai, a/k/a J. R. Wilkerson, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. El-Shaddai is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Centinela. Respondent has answered and El-Shaddai has replied. ElShaddai has also requested an evidentiary hearing and moved for appointment of counsel [Docket No. 18].
I. BACKGROUND/PRIOR PROCEEDINGS
In September 1979 following a jury trial, El-Shaddai was convicted in the Los Angeles County Superior Court of kidnapping, rape, acting in concert, and grand theft auto. The trial court sentenced El-Shaddai to an indeterminate prison term of seven years to life. In March 2007 El-Shaddai made his tenth appearance before the Board of Prison Terms ("Board"), which denied him parole for a period of two years. El-Shaddai filed a petition for habeas relief in the Los Angeles Superior Court, which denied his petition in an unreported reasoned decision. ElShaddai then filed a petition for habeas relief in the California Court of Appeal, Second District, which denied his petition in an unreported reasoned decision, and the California Supreme Court summarily denied his petition for habeas relief to that court without opinion or citation to authority on March 12, 2008. El-Shaddai timely filed his petition for relief in this court on April 27, 2008.
The facts underlying El-Shaddai's commitment offense, as recited by the Los Angeles Superior Court, are:
. . . . The record reflects that on November 22, 1978, [El-Shaddai] and his crime partner kidnapped the victim at gunpoint as she attempted to enter her car parked in a liquor store parking lot. [El-Shaddai] kept the muzzle of a shotgun at the victim's neck and tied a nylon sock over her eyes and mouth. She was told to keep her head between her legs. After five to ten minutes, [El-Shaddai's] crime partner started the car. They drove to a bail bonds office in Compton and discussed robbing the office using the victim as a hostage; however, the office was closed. While looking for another place to commit a robbery, [El-Shaddai] decided to rape the victim. He and his partner removed her clothing. [ElShaddai] raped the victim while the driver waited outside. After [El-Shaddai] was finished, his crime partner raped her as well. They then decided it was too late to commit the robbery. They drove for a while, before [Shaddai's] crime partner exited the vehicle. Three minutes later, [El-Shaddai] untied the victim, gave her time to collect some papers from her car and then let her go. [El-Shaddai] kept the car. The victim was able to see [El-Shaddai] out of the comer of her eye and later identified him. [El-Shaddai] claims he was not involved in the crime and that he won the car while gambling.*fn2
In his petition, El-Shaddai raises four grounds for relief: (1) denial of his Sixth Amendment right to have a jury determine all facts essential for the imposition of sentence; (2) actual innocence; (3) the Board failed to take judicial notice of the findings of the California Court of Appeal on his direct appeal; and (4) the Board denied him due process and equal protection by failing to credit him with good time and work credits under applicable California law. Respondent asserts that El-Shaddai's second ground is untimely and procedurally barred. Respondent asserts no other affirmative defense.*fn3
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn6 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn9 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn10 In a federal habeas proceeding, the standard under which this court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn11 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn12
In applying this standard, this court reviews the last reasoned decision by the state court,*fn13 which in this case was in part that of the Los Angeles Superior Court and in part that of the California Court of Appeal. Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn14 This presumption applies to state trial courts and appellate courts alike.*fn15
Two arguments raised by the Respondent may be disposed of quickly. First, that a California prisoner has a liberty interest in parole protected by the procedural safeguards of the Due Process Clause of the Fourteenth Amendment is well settled in this circuit.*fn16 Second, it is equally as well settled that a decision of the California Board of Parole Hearings to deny a prisoner parole must be supported by some evidence in the record.*fn17 Thus, Respondent's arguments on those two points are foreclosed by controlling authority.*fn18
Ground 1: Sixth Amendment Violation
In his petition, El-Shaddai contends that the Board impermissibly found that: (1) the offense was carried out in an especially cruel and callous manner; (2) the victim was particularly vulnerable; (3) the offense was carried out in a dispassionate and calculated manner; and (4) the victim was abused and defiled during the process. El-Shaddai argues that these factors are only applicable to convictions for murder, not to life sentences for other offenses, such as the offenses for which he was convicted. In his traverse, El-Shaddai varies his argument, contending that according to the matrix in the regulations, the Board should have set his primary term at 10, 12, or 14 years.*fn19 Under the regulations, the Board may impose the upper term or longer based upon certain enumerated factors.*fn20 El-Shaddai argues that, under Cunningham, because the Board extended his "sentence" beyond the statutory maximum, which is the mid-term, the factors had to be determined by a jury.*fn21 In rejecting El-Shaddai's argument, the California Court of Appeal held:
Petitioner first contends he was deprived of the right to have a jury determine beyond a reasonable doubt all the facts legally essential to his sentence. (Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 870-871]). In Cunningham, the United States Supreme Court invalidated California's Determinate Sentencing Law to the extent it allows a trial court to consider at the time of sentencing certain aggravating factors that were not found by a jury to be true beyond a reasonable doubt, other than prior convictions. (Pen. Code, § 1170, subd. (b).) Cunningham does not apply where, as here, the defendant is serving an indeterminate sentence.*fn22
Neither the Supreme Court nor the Court of Appeals for the Ninth Circuit has held that Cunningham applies in the context of setting a parole date. Indeed, the Ninth Circuit has held that the Sixth Amendment is not implicated in supervised release revocation proceedings and nothing in Cunningham calls into question the continued viability of that holding.*fn23 In the absence of an express holding by the Supreme Court that Cunningham applies to California parole proceedings, this court cannot find that the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn24 Nor can this court ...