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 convictions in Los Angeles County Superior Court in 1998 of attempted murder with an enhancement for being armed with a weapon, and assault with a deadly weapon resulting in great bodily injury. Petitioner is serving an indeterminate sentence of life plus four years with the possibility of parole.
Petitioner does not challenge his underlying conviction; rather, he challenges a May 28, 2009, decision of the Board of Parole Hearings (Board) denying parole. Petitioner's minimum parole eligibility date was May 29, 2008, and this was Petitioner's second parole suitability hearing. He claims the Board violated his due process rights in its 2009 decision finding him unsuitable for parole. He claims the Board's decision was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the United States Supreme Court. He further alleges the Board's decision was an unreasonable determination of the facts in light of the evidence. He contends the superior court erred when it intimated a nexus finding that was not made or articulated by the Board. He alleges the superior court's decision is not supported by the record or some evidence. He claims the factors relied upon were not probative of current dangerousness. He claims the underlying conviction is no longer a predictor of current dangerousness. He contends the Board's reliance on a "lack of insight" was not supported by the record or some evidence. Finally, he asserts the Board violated the Ex Post Facto clause by applying Proposition 9 ("Marsy's Law) to his case.
Petitioner filed a habeas court petition challenging the Board's 2009 decision in the Los Angeles County Superior Court on September 17, 2009. The petition was denied in a reasoned decision on December 1, 2009. Petitioner then filed a state habeas petition in the California Court of Appeal, Second Appellate District, December 29, 2009. The petition was summarily denied on January 14, 2010. He next filed a habeas petition on January 27, 2010, in the California Supreme Court. The petition was summarily denied on March 10, 2010.
Petitioner filed the instant federal petition for writ of habeas corpus on April 7, 2010. Respondent filed an answer to the petition on July 1, 2010. Petitioner filed a traverse on July 21, 2010.
On December 28, 1997, at approximately 12:10 a.m., the victim (Petitioner's ex-wife) was walking to her car accompanied by her boyfriend and two children. Petitioner, who was hiding behind a fence on the north side of the premises, suddenly jumped out holding a large knife. He yelled, "I told you I'm going to get you." The victim's boyfriend fled and dialed 9-1-1.
Petitioner began stabbing, punching and kicking the victim. The victim was holding one of the children at the time. Petitioner stabbed the victim ex-wife eight times, stating, "I'm going to kill you." Petitioner caused a non-life-threatening wound to the child, and he also threw the child to the ground during the fray. When the victim fell to the ground, Petitioner grabbed her by the hair and dragged her ten to fifteen feet, whereupon he began to kick her in the torso. The victim feigned death, and Petitioner left. Upon arrival of officers and prior to being transported to the hospital, the victim told officers Petitioner had their seven-year-old child with him. Petitioner was arrested at his house.
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 suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.
Cal. Code Regs. tit. 15, §§ 2402(a) and (b). Section 2402(c) sets forth circumstances tending to demonstrate unsuitability for release. "Circumstances tending to indicate unsuitability include:
(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include:
(A) Multiple victims were attacked, injured or killed in the same or separate incidents.
(B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder.
(C) The victim was abused, defiled or mutilated during or after the offense.(D) The offense was carried out in a manner which demonstrates an ...