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
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 Alameda County, for two counts of first degree murder. Petitioner is serving a term of twenty five years to life.
In the instant petition, Petitioner challenges the California Board of Parole Hearings' (Board) July 3, 2007 decision finding him unsuitable for release.
On June 23, 2008, Petitioner filed a petition for writ of habeas corpus in the Alameda County Superior Court challenging the Board's 2007 decision. On April 13, 2009, the superior court denied the petition in a reasoned opinion.
On May 4, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District. The petition was summarily denied on June 4, 2009.
On June 24, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On December 2, 2009, the petition was summarily denied.
Petitioner filed the instant federal petition for writ of habeas corpus on December 23, 2009. Respondent filed an answer to the petition on April 12, 2010, and Petitioner filed a traverse on April 27, 2010.
On June 24, 1979, between the hours of 11:30 p.m. and 12:30 a.m., Mr. Leonard Luna was house sitting at the home of his employer, Mr. Bernard Marks. At approximately 11:30 p.m., Mr. Luna answered the front door after hearing the doorbell.
Two individuals, later identified as Marty Spears and Daniel Geisler, asked for assistance in obtaining some gas for their vehicle. Mr. Luna assisted in getting the individuals gas from the storage shed. Mr. Luna returned to the home and the doorbell rang a second time.
Marty Spears and Daniel Geisler had returned again and asked to use the telephone. Mr. Luna let them into the home. After completing the phone call and exciting the house, Spears pulled a gun on Mr. Luna. Then, one of them whistled and motioned for a car to pull to the front of the house.
Darren Lee and Petitioner then entered the residence. They instructed Luna to lay on the floor as the four individuals began to remove items from the house. Luna was then instructed to move to another room where he was tied with a rope and struck over the head with the butt of a gun. Luna heard one of the individuals saying, "lets kill him, he's seen our faces." A different voice instructed the others not to kill him.
Second Case-Ranzo Homicides
On June 25, 1979, at approximately 2:30 p.m., fellow employees of Phillip and Kathryn Ranzo went to their residence to determine why they had not reported to work. Phillip Ranzo was discovered lying face down, hog-tied on the garage floor and he appeared to be dead. Responding officers found Kathryn in a third-story bathroom, partially nude. A knife with blood smears was found near the home office.
The bedroom had been ransacked with jewelry and clothing thrown around the room. Investigators found blood on the sheets and various locations throughout the bedroom. The coroner pronounced both Philip and Kathryn Ranzo dead at the scene. The autopsy report later identified the cause of death for both victims as "slashing wounds to the neck."
DISCUSSION I. Standard of Review
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, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause." Bd. of Pardons v. Allen, 482 U.S. at 371.
In California, the Board of Parole Hearings' determination of whether an inmate is suitable for parole is ...