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 (CDCR) following his convictions of second degree murder, assault with a deadly weapon, and battery with serious injury. Petitioner is serving twenty years to life in prison.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenging the Board of Parole Hearings' (Board) October 1, 2008 decision finding him unsuitable for release.
On April 15, 2009, Petitioner filed a Petition For Writ Of Habeas Corpus in the San Diego County Superior Court contending that the Board's 2008 decision was not supported by some evidence. On May 27, 2009, the superior court issued a reasoned decision and found some evidence supported the Board's decision.
On September 1, 2009, Petitioner filed a habeas corpus petition in the state appellate court. The petition was denied on October 30, 2009, in a reasoned decision finding some evidence to support the Board's decision.
On November 19, 2009, Petitioner filed a Petition in the California Supreme Court, which was summarily denied.
Petitioner filed the instant federal Petition For Writ Of Habeas Corpus March 18, 2010. Respondent filed an answer to the petition on May 24, 2010, and Petitioner filed a traverse on June 9, 2010.
The commitment offense occurred when Petitioner and his coconspirators went to the Hillcrest area in San Diego, known to be frequented by homosexual, gay men. Petitioner and his friends were known as skinheads and set out to commit a hate crime, targeting gay males. On December 13, 1991, at approximately 11:15 p.m., the first victim, Keith Keziah, was walking toward the Hillcrest Coffee Shop when he was approached by Petitioner and his coconspirators. Petitioner asked him if he dated, and the victim ignored him and crossed the street to avoid a confrontation. Petitioner and his friends continued to harass Mr. Keziah, and they became angry. After not receiving a response, Petitioner grabbed Keziah by the shirt, swung him around, and punched him in the face, breaking his nose. Keziah ran away and sought assistance. Approximately 15 minutes later, Petitioner and his coconspirators, approached victims, John Wear and Brian Baird who were walking to the same coffee shop. Mr. Baird greeted Petitioner and his friend and he was suddenly without provocation struck in the nose. Petitioner then began attacking Mr. Wear, and Baird saw Petitioner pull a knife from Wear's stomach. Petitioner then told Wear, "don't cry, faggot" and started kicking him again. As Baird moved to help Wear, Petitioner turned and went towards him stating, "Do you want some? Do you want some?" Petitioner then turned his back and crouched down stating, "No, I don't want anything. I don't even know you." Petitioner then began hitting Baird in the head and kicking him in his back.
Baird later discovered that Petitioner had cut his head, and Petitioner told him, "You better run." John Wear died two days later as a result of the wounds to his abdomen. He also suffered wounds to the right thigh and a superficial wound to his left buttocks. Petitioner also suffered blunt force trauma, including bruises and abrasions to his right check, left ear, chest area, right forearm, and inside of both knees. Petitioner was arrested in part because he bragged that he had gotten into a fight with some homosexuals, and he stabbed one of them.
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, 606 F.3d 606, 609 (9th Cir. 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). "[D]espite the necessarily subjective and predictive nature of the parole-release decision, state ...