The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Jose Chavez, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Chavez is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison. Respondent has answered, and Chavez has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
After entering a guilty plea in 1991, Chavez was convicted in the Los Angeles County Superior Court of one count of second-degree murder, two counts of attempted murder, and one count of shooting at an occupied vehicle. The Los Angeles County Superior Court sentenced Chavez to an indeterminate prison term of 15 years to life. Chavez does not challenge his conviction and sentence in these proceedings.
In 2006 Chavez appeared at a parole suitability hearing before the Board of Parole Hearings, which denied him parole. Chavez timely file a petition for habeas corpus relief in the Los Angeles Superior Court, which denied his petition in an unreported, reasoned decision.
Chavez's subsequent petition to the California Court of Appeal, Second Appellate District, was summarily denied without opinion or citation to authority. On January 23, 2008, the California Supreme Court summarily denied review without opinion or citation to authority. Chavez timely filed his petition in this court on March 2, 2008.
On January 9, 2009, this court stayed further action in this case pending the issuance of the mandate by the en banc panel of United States Court of Appeals for the Ninth Circuit in Hayward.*fn1 The Court of Appeals has rendered its decision in Hayward.*fn2 The court now terminates its stay and decides the case.
As summarized by the Los Angeles County Superior Court, the facts underlying the commitment offense are:
The record reflects that on March 24, 1991, [Chavez] and two co-defendants, Richard Diaz and Ambrocio Lopez were involved in a gang related shooting. [Chavez] and co-defendants were driving around in Lopez's van looking for rival gang members to kill in retaliation for the previous murder of one of their own gang members. The three victims, rival gang members, were sitting in a vehicle when they were approached on foot by petitioner and co-defendants. After exchanging words, co-defendant Diaz pulled out a 357 magnum and fired several shots at the victims. One victim died at the scene, another suffered a gunshot wound in the torso, and the third escaped injuries during the assault.*fn3
II. ISSUES RAISED/DEFENSES
Chavez raises two grounds: that the decision of the Board was (1) arbitrary; and (2) was contrary to and an unreasonable application of established federal law. Respondent does not assert any affirmative defense.
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 proceeding 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, Chavez has the burden of showing by a preponderance of the evidence that he merits habeas relief.*fn12
In applying this standard, this court reviews the last reasoned decision by the state court.*fn13 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 ...