The opinion of the court was delivered by: Michael J. Seng 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 1980 conviction in Tulare County Superior Court for second degree murder with use of a deadly weapon. (Pet. at 2, ECF No. 1.) Petitioner was sentenced to sixteen years to life. (Id.)
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings' (Board) April 24, 2007 decision finding him unsuitable for release on parole. Petitioner claims that his due process rights were violated because the Board's decision was not supported by evidence.
On May 15, 2008, Petitioner filed a state petition for writ of habeas corpus in the Tulare County superior Court challenging the Board's 2007 decision. (Answer, Ex. 1, ECF No. 12-1.) On June 5, 2008, the Superior Court denied the petition. (Answer, Ex. 2, ECF No. 12-6.) On June 14, 2008, Petitioner filed a state petition with the California Court of Appeals, Fifth Appellate District. (Answer, Ex. 5, ECF No. 12-12.) The petition was denied on September 4, 2008. (Id.) Finally, Petitioner also filed a petition with the Supreme Court of California on September 9, 2008, and it was denied on October 29, 2008. (Id.)
Petitioner filed the instant petition for writ of habeas corpus on January 28, 2009. Respondent filed an answer to the petition on December 9, 2009, and Petitioner filed a traverse on February 1, 2010.
II. STATEMENT OF FACTS*fn2
On September 6, 1980, Visalia Police were dispatched to the area of 632 East Douglas, Visalia, regarding an assault. Upon arrival of Officer Henyon, he noticed a male Mexican adult lying in front of the step in the doorway at 632 East Douglas. The subject appeared to have multiple stab wounds in all areas of his upper body, with many being superficial and a number of wounds entered the body cavity up to three inches, causing significant damage. The death was caused by hyperbolemic shock due to multiple stab wounds. Additionally, the left lung, coupled with lacerations to the heart, contributed significantly to the death. The investigation into the murder continued on August 13, 1984. Johnny Arnillias, age 24, provided a statement to the police regarding the crime. Arnillias indicated that he was at the residence of Connie Granillo, 1515 Northwest First Street, Visalia, California, on the evening of September 6, 1980. He indicates that Pisinelo "Peaches" Mendoza came to the residence at approximately 9:00 p.m. Mendoza came to the residence to see Connie, as she was the mother of his two children and he was her ex-boyfriend. Also present at the time was Freddie Sadillo. While at the Granillo residence, a conversation between Mendoza, Arnillas and Sadillo centered around the fact that Mendoza wanted protection from the brothers of Connie Granillo. Mendoza wanted Arnillas to talk to the Granillos and ask them to leave him alone. It would appear that Mendoza was being assaulted every time he was seen by the Granillo brothers. While Mendoza and Arnilla were talking, Sadillo left. Shortly thereafter Mendoza thought he heard a noise inside the residence. Mendoza checked the residence, but located no one. Upon returning to the porch of the residence, Gary Granillo suddenly appeared from the residence, stabbing Mendoza. Mendoza then began running from the area with Gary Granillo and his brothers, Daniel and Frank Ruiz in pursuit. Arnillas indicates that he and Sadilla followed to see what happened as they approached the area of Soroptimist Park in Visalia. Arnillas indicated that he observed that Mendoza had been caught by the three subjects and that Gary Granillo and Frank Ruiz were stabbing Mendoza. While Mendoza was being stabbed by Gary Granillo and Frank Ruiz, Daniel Granillo was kicking and stomping him. At this time, a vehicle driven by Debra Sims pulled up. The vehicle belonged to Gary Granillo, the vehicle she was driving in. Everybody including Arnillas and Sadillo, jumped in the vehicle and fled.
A. Standard of Habeas Corpus 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, 326, 117 S.Ct. 2059, 138 L.Ed. 2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.
Petitioner is in custody of the CDCR 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. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir. 2006), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010), and citing White v. Lambert, 370 F.3d 1002, 1009-10 (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 his underlying state court conviction.'").
Under the AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's adjudication of the claim:
(1) 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
(2) 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 v. Andrade, 538 U.S. 63, 70-71, 123 S.Ct. 1166, 155 L.Ed. 2d 144 (2003). Accordingly, Petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed. 2d 279 (2002); Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although "AEDPA does not require a federal habeas court to adopt any one methodology," there are certain principles which guide its application. Lockyer, 538 U.S. at 71.
First, the AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford, 537 U.S. at 24. Determinations of factual issues made by state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1). Accordingly, when assessing whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If a state court summarily denies a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000); Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590 (1991), 115 L.Ed. 2d 706 (1991). Conversely, de novo review, rather than AEDPA's deferential standard, is applicable to a claim that the state court did not reach on the merits. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Second, the court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the U.S. Supreme Court. See Williams v. Taylor, 529 U.S. at 412. In this context, Ninth Circuit precedent remains persuasive but not binding authority for purposes of determining whether a state court decision is an unreasonable application of Supreme Court Law. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed. 2d 914 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed. 2d 263 (2002).
Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle.but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694; Williams, 529 U.S. at 407-08. As the Supreme Court has emphasized, a court may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411. Thus, the ...