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 1974 conviction in Sacramento County Superior Court for conspiracy to commit murder, first degree murder, and possession of a weapon. Petitioner was sentenced to one life term (seven years to life) plus one year.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings' (Board) October 11, 2006 decision finding him unsuitable for release on parole. Petitioner contends (1) there was not some evidence to support the Board's decision; (2) the Board discriminated against him when compared to his three co-defendants; (3) he is being held for a term that is disproportionate to his crime under the Determinate Sentencing Law (DSL); (4) he is being held for a term that is disproportionate to his culpability under the Indeterminate Sentencing Law (ISL) because he was never provided a hearing under the ISL; and (5) the Board did not state its reasons for finding him unsuitable.
In 2007, Petitioner filed a state petition for writ of habeas corpus in the Sacramento County Superior Court challenging the Board's 2006 decision. On August 21, 2007, the superior court denied the petition in a reasoned decision. In finding some evidence supported the Board's denial, the Court stated that "Petitioner's crimes were committed on separate occasions against multiple persons singled out only because of their race. Petitioner was urged to commit such crimes by the Nation of Islam, but the records failed to show why petitioner would be particularly drawn to this group or why, after a relatively short association, he would commit murder for the group. Thus, his motive seems trivial in relationship to the crime." The court declined to "reassess the Board's reasoning, element by element," because the commitment offense provided some evidence to support the Board's decision.
On October 17, 2007, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. On October 25, 2007, the petition was denied with citation to People v. Duvall, 9 Cal.4th 464, 474 (1995).
On December 21, 2007, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On June 25, 2008, the California Supreme Court summarily denied the petition.
Petitioner filed the instant petition for writ of habeas corpus on September 19, 2008. Respondent filed an answer to the petition on January 21, 2009, and Petitioner filed a traverse on February 6, 2009.
Backridge, a white, off duty Sacramento City Police sergeant had purchased gasoline for his automobile at the Quick Stop Market, corner of Franklin Boulevard and Fourth Avenue in Sacramento shortly after 10:00 p.m. on the evening of Saturday, April 10th, 1974. After paying for the purchase, he walked back towards his vehicle, heard a loud report from his right and felt that he had been shot in the legs. He called to the store clerk to notify the police. The call was received by the Sacramento Police Department at 10:13 p.m. Backridge had fallen to the ground, did not see the person who shot him, nor any vehicle which he could associate with the incident. There were, however, two witnesses to the shooting, Mac Burcell, riding his bicycle north on Franklin Boulevard toward the market heard the report of a gun shot from the direction of the market, saw Backridge fall to the ground then saw Petitioner run to the west of the intersection and duck into an alley.
On April 21, 1974, at approximately 11:30 p.m. Orvelle left the Sea Shanty Bar on Stockton Boulevard in Sacramento and walked toward his home. He had consumed two beers at the bar and was carrying a six pack of beer with him. When approaching Perry Avenue, he felt a force on the back of his head, as if someone had hit him with a baseball bat. He turned around and saw Petitioner approximately 25 feet away from him, crouched with a weapon in his hand, which he believed was a sawed-off shotgun. Petitioner then fired the weapon again, then ran to a vehicle approximately ninety feet away.
On April 24, 1974, at approximately 1:00 a.m., Frank Belmore and his friend Michael Nuwyaka were sitting in the front room of Belmore's parents' home. There was a gap in the window drapes approximately 12 to 15 inches and someone looking in the window from the outside could ascertain that Belmore was white. Nuwyaka heard a blast through the window and then Belmore slumped in his chair. Belmore was shot in the head and was bleeding. He died as a result of a shotgun wound to the cervical spine and brain stem.
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 state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging [her] underlying state court conviction.'").
The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d); see Lockyer, 538 U.S. at 70-71;Williams, 529 U.S. at 413.
"[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).
There is no independent right to parole under the United States Constitution; rather, the right exists and is created by the substantive state law which defines the parole scheme. Hayward v. Marshall, 603 F.3d 546, 559, 561 (9th Cir. 2010) (en banc) (citing Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Pearson v. Muntz, No. 08-55728, 2010 WL 2108964, * 2 (9th Cir. May 24, 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, No. 06-15444, 2010 WL 2330283, *6 (9th Cir. June 4, 2010). "[D]espite the necessarily subjective and predictive nature of the parole-release decision, ...