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 1995 attempted murder conviction. He is serving a sentence of seven-years-to-life, plus four years for various enhancements.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the November 6, 2008 decision by the Board of Parole Hearings (Board) finding him unsuitable for release.
In May 2009, Petitioner filed a petition for writ of habeas corpus in the Santa Clara County Superior Court claiming that the 2008 Board decision was not supported by some evidence of current dangerousness. The superior court denied the petition in a reasoned decision.
Petitioner raised the same claims to the California Court of Appeal and California Supreme Court by way of habeas corpus petitions, both were summarily denied.
Petitioner filed the instant federal petition for writ of habeas corpus on January 22, 2010. Respondent filed an answer to the petition on April 2, 2010, and Petitioner filed a traverse on May 3, 2010.
On June 7, 2010, the Court granted Respondent's request to submit supplemental briefing in light of the Ninth Circuit Court of Appeals' decision in Hayward v. Marshall, 603 F.3d 546, 559-661 (9th Cir. 2010), and the supplemental brief was filed on July 7, 2010. On July 19, 2010, Petitioner filed a request to oppose Respondent's supplemental brief, along with the opposition. Petitioner's request is hereby granted.
In May of 1993, Petitioner married Cathy (the victim in this case) and each of them had two children from prior marriage that resided in their family home. In August of 1993, Petitioner became in contact with Susan, a former girlfriend, and with Cathy's approval the two of them exchanged occasional letters and telephone calls.
However, unbeknownst to Cathy, the two became involved in a clandestine sexual relationship consummated at various locations within the United States. Petitioner disguised the meetings with Sue by claiming to be on business trips and even prepared false travel documents to conceal the true purpose of the trips. Petitioner arranged the meetings through numerous telephone calls to Susan but was able to conceal the phone calls because he paid all the telephone bills.
In early August, Cathy happened to open and examine a telephone bill that arrived in the mail. She discovered that numerous phone calls had been placed to Chino, and she asked Petitioner who lived there. Petitioner acknowledged it was Sue and claimed that he was providing her emotional support as she was going through a divorce. Cathy was upset and stated that she would continue to monitor his telephone calls.
Approximately two weeks before the commitment offense, Petitioner made plans to spend the night of August 9 with Sue in San Francisco, and disguised the trip by claiming to be on a business trip in Sacramento. He gave Cathy the telephone number of the hotel in which, he said, he would be staying in Sacramento. On August 9, he went to Sacramento and checked into the hotel. He then proceeded as planned to San Francisco to meet Susan. During the evening, Cathy called the Sacramento hotel, and when Petitioner did not answer the phone in the room she called his pager number. Petitioner returned the page from a theater lobby during intermission of the show he was watching with Susan. He explained the noise by claiming he had gone to a Sacramento brew pub for drinks and dinner. He also returned another page and claimed he had just returned to his hotel room.
When Petitioner returned home the next day, he initially appeared cold but he and Cathy had sexual intercourse twice two days later. Cathy's brother who stayed the night the following day, a Saturday, also testified that the interactions between Petitioner and Cathy were good and it was a pleasant evening.
All of the children were out of the home on Sunday night, and at bed time Petitioner gave Cathy a sentimental card and a wrapped recording of the soundtrack from the movie, "Forrest Gump." Cathy commented that Petitioner need not purchase things as a gift for her that he wanted to buy for himself. Petitioner and Cathy then argued, and after a brief cooling off period, they apologized to one another.
The next morning, Cathy asked Petitioner to shower first because she was still tired. Petitioner awakened Cathy shortly thereafter by kissing her on the cheek. When she got out of bed Petitioner asked her to sit down on the bed and close her eyes because he had another present for her. She sat down and closed her eyes. She then heard rustling which seemed to come from the closet.
Cathy sensed nothing further until she discovered herself on her back on the floor with a plastic bag stretched tightly over her face. She felt like she was dying. She felt hands holding onto the plastic bag and struggled to remove the hands. The bag was finally removed and she saw Petitioner standing over her.
Petitioner claimed that she had hurt herself and suggested she take a shower to wash off the blood. Cathy discovered she was bleeding from a cut on the back of her head. She got into the shower and when she turned the water on, it made her feel dizzy and sick so she immediately got out and walked back to the bedroom.
When she was in the bedroom, she saw a club-like device made out of pieces of metal pipe. She had never seen the device before, and she then concluded that Petitioner had tried to kill her. She asked Petitioner to call for help and began to scream. Petitioner ultimately called 911 and police and paramedics responded.
Cathy was taken to the hospital. Based on the description of the incident, the police arrested Petitioner and removed him from the home. During a search, officers discovered the pipe device and the plastic bag. Blood was found on the pipe and the bag was tested for DNA.
It was determinated that Cathy suffered a blunt-instrument wound to the back of her head which requires sutures to close. She was treated and released from the hospital on the same day. However, she continued to experience ongoing neurological symptoms.
Later that same day, police made contact with Sue who admitted she had sexual relations with Petitioner. The next day police told Cathy about Petitioner's relationship with Sue, and this was the first she had heard of the nature of their relationship.
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 ...