The opinion of the court was delivered by: Gary S. Austin 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 conviction in Los Angeles County Superior Court in 1991 of second degree murder with use of a firearm. He is serving a sentence of sixteen years to life with the possibility of parole.
Petitioner does not challenge his underlying conviction; rather, he claims the California Board of Parole Hearings ("Board") violated his due process rights in its April 25, 2008, decision finding Petitioner unsuitable for parole. Petitioner contends he was denied his due process rights when the Board of Parole Hearings (Board) failed to support its finding that Petitioner posed a risk of current dangerousness.
Petitioner filed a habeas court petition challenging the Board's 2008 decision in the Los Angeles County Superior Court on December 19, 2008. The petition was denied in a reasoned decision on February 25, 2009. Petitioner next filed a habeas petition in the California Court of Appeal, Second Appellate District, on April 16, 2009. The appellate court denied the petition on April 23, 2009. Petitioner then filed a habeas petition in the California Supreme Court on May 19, 2009. The petition was summarily denied on October 14, 2009.
Petitioner filed the instant federal petition for writ of habeas corpus on November 25, 2009. Respondent filed an answer to the petition on June 21, 2010. Petitioner filed a traverse on August 3, 2010.
On October 19, 1991, at 1014 N. Marine Ave, Wilmington, a witness was interviewed and related the following. He had observed a tan Monte Carlo Regal coming north on Marine with a passenger, David Neisinger, sitting in the right side window area. The passenger was leaning over the top of the car, holding a handgun with both hands and pointed at a group of people on the east side of the street. At this point, the passenger yelled, "West Side Wilma Locos" and began firing at the group of people. The car continued south to Opp Street while the passenger climbed back into the front passenger's seat. The car turned right on Opp Street and sped away.
At 1:00 a.m. on the same date, police officers were on patrol traveling northbound on Friar Street when they heard several gunshots coming from the northeast corner of Marine Avenue and Oak Street. The officers immediately observed a brown Cutlass turn right from southbound Marine Avenue to eastbound Opp Street. Petitioner and his crime partner were taken into custody. During a crime scene investigation, officers recovered a nine-millimeter automatic pistol thrown under a parked vehicle located on the north side of Opp Street, west of Marine and east of the alley utilized by Petitioner and his crime partner. This location was approximately where officers first observed the inmate and his crime partner's vehicle fleeing from the scene. The victim, Arnulfo Rodarte, was observed by police lying on the sidewalk with a single gunshot wound to the left side of his chest. There was a large pool of blood on the ground and the victim's shoulders and head. The victim failed to respond to treatment and was pronounced dead.
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 controlled by the following regulations:
(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for a denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.
(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's ...