The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Tracy Renee Lum, Esq.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his conviction of kidnapping for robbery and ransom. He is serving a fourteen year-to-life sentence, plus a four year enhancement.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings' February 24, 2009 decision finding Petitioner unsuitable for release.
Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the Board's 2009 decision. The superior court denied the petition in a reasoned decision finding some evidence to support the Board's decision of unsuitability.
Petitioner then raised the same claims in a petition for writ of habeas corpus in the California Court of Appeal. The petition was denied with citations to In re Lawrence, 44 Cal.4th 1181 (2008) and In re Shaputis, 44 Cal.4th 1241 (2008).
Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court, which was summarily denied.
Petitioner filed the instant federal petition for writ of habeas corpus on June 15, 2010. Respondent filed an answer to the petition on September 13, 2010, and Petitioner filed a traverse on September 22, 2010.
On November 27, 1993, victim, Carrie Denise Reese called the Long Beach Police Department to report she had been at the Bank of America ATM machine at San Fernando Road and Sierra Highway, making a deposit. Co-defendant, Paguada, walked toward her with a .38 caliber revolver. He held it close to her stomach and told her to get into the vehicle. She got into the back of the van, and then Paguada put duct tape over her eyes and sat on the seat next to her while co-defendant Sanchez and Petitioner got into the front seat and drove off. Paguada asked Reese for her pin number and he would not kill her. He then asked her if she had children and she said she had three. Paguada told Reese to cooperate if she wanted to see her children again. Paguada then went through her purse and took her money and jewelry. Paguada stopped at the bank but decided not to use the ATM because there were too many people around. They then went to buy gas. A short time later, Petitioner stopped the van and took the victim out, then tied her to a fence with duct tape and told her she would get her vehicle back. Reese was able to free herself and call police.
On December 7, 1993, victim, Papazian, went to an ATM machine at Bank of America at Crenshaw Boulevard and Pacific Coast Highway. He withdrew $200 and started to walk back to his car. Sanchez and Paguada approached Papazian wearing ski masks, and Papazian threw down his wallet and offered his car keys. The defendants forced the victim into the backseat of the car. One of them got beside him and covered his eyes with duct tape, and the other defendant began to drive away. They drove for a while and then stopped and were met by another vehicle.
They all got out and the victim was taken into a residence. His hands and feet were tied and he was placed into a closet. He was fed, given water to drink and taken to the restroom on a regular basis. The victim was asked for his pin number, and the defendants took his ATM and credit cards. They found his address and told him they were going to his house to get some things. They threatened to kill him and his family. One of them played Russian roulette by placing the gun in his mouth and pulling the trigger several times. Palazian was left in the closet for a total of four days. On the fourth day, the victim was taken to his home and placed in a closet. The defendants took some additional items from the house before leaving. The victim was given a knife to free himself, and was told to not turn in his credit cards for several days and to cash a $5,000 check to be taken to a certain location. He was told to follow the directions because they knew where his mother and grandmother lived. The victim was able to free himself and call police.
On December 11, 1993, Torrance police officers went to the victim's residence and waited for a telephone call from defendants. They called at 9:07 and asked the victim if he had the money and was ready to drop it off. Palazian was directed to put the money in an envelope, then into a plastic bag, and take to a pre-arranged location to drop off. He was then to go home and wait for another phone call to tell him where he could pick up his car. Police were dispatched to the Fantastic Burger, but were spotted by the defendants. They sped away and were lost in traffic. At 11:00 p.m. that same evening, the victim received a second phone call and was told to put the money on a bus bench in front of a liquor store at Carson and Western. An officer made the money drop at midnight, and a Camaro was spotted in the area driving by several times. At 1:00 a.m. a man with a beard approached the bench, picked up the package and walked down the street. The Camaro was spotted passing the person several times but did not stop. The police detained the individual who retrieved the money. He told them that he had been walking down the street when approached by two men who said they would pay him to pick up the package.
Officers observed the Camaro stop by a pay phone at 401 East Carlson. Victim Papazian received a phone call about that same time. Petitioner hung up the phone when he spotted the officers. He then took off in the Camaro and was chased by officers. Petitioner finally stopped and was arrested without incident. The person who picked up the money identified both Petitioner and Sanchez as the person who asked him to pick up the money.
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, 606 F.3d 606, 609 (9th Cir. 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 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 ...