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 Riverside County Superior Court in 1992 of first degree murder with the use of a firearm. He is serving a sentence of twenty-six 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 June 10, 2008, decision finding Petitioner unsuitable for parole. Petitioner argues the state courts unreasonably applied the some evidence standard as there was no evidence to support the parole board's finding of current dangerousness.
Petitioner filed a habeas court petition challenging the Board's 2008 decision in the Riverside County Superior Court. The petition was denied on April 12, 2009, for failure to state a prima facie factual case supporting release. On May 22, 2009, Petitioner filed a habeas petition in the California Court of Appeal, Fourth Appellate District. On June 22, 2009, the appellate court summarily denied the petition. Petitioner next filed a habeas petition in the California Supreme Court on August 18, 2009. The petition was summarily denied on January 13, 2010.
Petitioner filed the instant federal petition for writ of habeas corpus on April 14, 2010. Respondent filed an answer to the petition on July 6, 2010. Petitioner filed a traverse on August 16, 2010.
On September 16, 1991, the Riverside Police were notified of a traffic accident at the location of Jurupa Avenue in Fremont. On arriving at the scene, the officers observed a deceased male in the vehicle. The car was observed to have several bullet holes in the window in the driver's side, and the victim was identified as Wilbert Washington, age 25 at the time. He was bleeding from several areas of the body. It was subsequently determined that he had suffered gunshot wounds to his left shoulder, left hand, and lower back.
Previously that night, Petitioner and his crime partner were at a nearby bar. Petitioner's crime partner, Williams, had a confrontation with the victim which resulted in the victim striking Williams. Williams became very upset at having been stricken and decided to seek revenge. Petitioner, Williams, and his crime partners grouped together, changed vehicles, and drove off looking for the victim. They drove to several locations looking for the victim and finally spotted the victim driving in the vicinity of a hospital. The group followed and then drove alongside the victim's vehicle. At that point, Petitioner took out a gun and fired multiple shots through the driver's window of the vehicle. The victim's vehicle swerved off the road and went up an embankment. Williams then exited the vehicle, walked over to the victim's vehicle and fired two more shots into the vehicle.
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 ...