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. Respondent, Kathleen Allison*fn1 , is represented by David N. Sunada, Esq., of the Office of the Attorney General of the State of California.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his convictions in Orange County Superior Court in 1993 of second degree murder, attempted second degree murder, and enhancements for use of a firearm and use of a firearm with great bodily injury. 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 May 2, 2007, decision finding Petitioner unsuitable for parole. Petitioner contends he was denied his due process rights when the Board failed to support its finding that Petitioner posed a risk of current dangerousness.
Petitioner filed a habeas court petition challenging the Board's 2007 decision in the Orange County Superior Court. The petition was denied on May 27, 2008, for failure to support claims by supplying an adequate record. Petitioner next filed a habeas petition in the California Court of Appeal on July 18, 2008. The appellate court summarily denied the petition on July 31, 2008. On August 25, 2008, Petitioner filed a habeas petition in the California Supreme Court. The petition was summarily denied on February 25, 2009.
Petitioner filed the instant federal petition for writ of habeas corpus on March 31, 2009. Respondent filed an answer to the petition on July 22, 2010. Petitioner did not file a traverse.
On June 7, 1992, at approximately 4:41 a.m., Orange County Sheriff's deputies heard gunshots while patrolling in the City of Stanton. They responded to the area of the railroad tracks south of Orangewood and west of Santa Rosalia and found two male subjects, both victims of gunshot wounds. One of the victims was later identified as Jesse Hubnero. He was found dead at the scene with a single gunshot wound to the head. The second victim, later identified as Michael Moses Munoz, had sustained three gunshot wounds and was transported to the UCI Medical Center for emergency treatment. The two male victims were identified as gang members of the Lomos Gang from Rosemead and South Gabriel area. Victim Hubnero had a street moniker of "Tutti." The second victim, Munoz, had a street moniker of "Sniper."
Two female juveniles who were from the City of Rosemead were contacted at the scene. They were later identified as Delores Villalobos and Rosemary Guiterro. They were both in the company of the victims and were present when the shooting took place. According to Villalobos and Guiterro, on June 6, 1992, they and two additional females had driven to Orange County in Guiterro's vehicle and picked up Robert Anaya. They all drove to a party on Date Street in Stanton where they met Petitioner, also known by the moniker of "Rascal." At approximately 1:15 a.m., Villalobos, Guiterro, and Anaya left the party and drove back to Los Angeles where they dropped the other girls off at the residence.
They then drove to the residence of a Lomos gangmember with the moniker "Gremlin." They all exited the vehicle. Some of the Lomos gangmembers gave Anaya a hard time and made him cross out some of the gang graffiti that was on the wall in their neighborhood. Reportedly the graffiti was from Anaya's old neighborhood. Villalobos, Guiterro, and Anaya then left Gremlin's house accompanied by the victims Munoz and Hubnero. They returned to the party in Stanton and found out that the party was over. They then met Petitioner who advised them where they could purchase cocaine. After Petitioner got into the vehicle, they drove to an unknown residence and acquired some cocaine.
Petitioner then guided them to a dead end of Orangewood by the railroad tracks where they parked. At that time, Munoz began painting graffiti on a wall on the east side of the railroad tracks. Petitioner told Hubnero to tell Munoz to stop. Hubnero told Petitioner that Munoz was his "homeboy" and that he would not tell him to stop. Petitioner then shot Hubnero once in the head and Hubnero fell to the ground. Petitioner then walked rapidly toward victim Munoz. He fired one shot at him. Munoz turned around and started to run. Petitioner fired three more shots at him. Munoz fell to the ground. Petitioner continued to shoot at him from approximately three to four feet. Petitioner and Anaya then fled the area.
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.'").
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. In this case, however, the state courts did not reach the merits of Petitioner's claims. The first habeas petition was denied by the Orange County Superior Court as procedurally defective in that Petitioner had failed to supply an adequate record. The subsequent habeas petitions filed in the California Court of Appeal and California Supreme Court were denied without comment. We presume that those courts denied the petitions for the same reasons expressed by the superior court. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Since no state court reached the merits of Petitioner's claims, we must review legal issues de novo and factual issues for clear error. Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002).
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 ...