The opinion of the court was delivered by: Sandra M. Snyder 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 Los Angeles County Superior Court of attempted voluntary manslaughter with intentional infliction of great bodily injury and aggravated mayhem, both with the use of a knife. He is serving an indeterminate sentence of life plus one year 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 September 9, 2008, decision finding Petitioner unsuitable for parole. Petitioner contends there was no evidence that he poses a current threat to public safety.
Petitioner filed a habeas court petition challenging the Board's 2008 decision in the Los Angeles County Superior Court on March 17, 2009. The petition was denied in a reasoned decision on July 28, 2009. Petitioner next filed a habeas petition in the California Court of Appeal, Second Appellate District, on September 23, 2009. The appellate court denied the petition on October 6, 2009. Petitioner then filed a habeas petition in the California Supreme Court on October 22, 2009. The petition was summarily denied on April 14, 2010.
Petitioner filed the instant federal petition for writ of habeas corpus on May 19, 2010. Respondent filed an answer to the petition on August 10, 2010. Petitioner filed a traverse on July 9, 2010, prior to Respondent's filing of the answer.
On July 2, 1990, Petitioner's former wife, Maria Castellon, contacted Petitioner. She had purchased a stove and wanted to dispose of the old one. Petitioner told her he would help her do so the next weekend. That evening, while Castellon was away, Petitioner came to her home without telling her. Castellon had gone dancing with a male friend after 9:00 p.m., and left her three youngest children in the care of her 13-year-old daughter. Castellon arrived home around 1:45 a.m. to find Petitioner sitting in the kitchen with the lights off.
Petitioner stood up and said, "And now what?" He began pacing and asking questions insisting she tell him with whom she had been. She refused and said, "We had already agreed that I would make my own life." Castellon's daughter heard Petitioner threaten Castellon to tell him or else "we're both going to die." Petitioner stated, "The children were alone. Where were you?" He then grabbed a hammer but put it away after she asked whether he was going to kill her. When Castellon would not reveal the name of her date, Petitioner sat down again and began to cry.
Castellon went into the bedroom and thought she heard Petitioner leave after using the bathroom. Petitioner opened the bedroom door a moment later and entered. He picked up the telephone and stated, "I'm going to take the children away from you," then dialed. After hanging up, Petitioner ran toward the kitchen where he obtained a knife and returned. He came at Castellon, who screamed, "No, don't do it." Petitioner replied, "This is where you are going to end," as Castellon sat on the bed.
Petitioner then stabbed her quickly and repeatedly with the knife. He grabbed her feet and lifted them, trying to stab her in the "private parts." She turned face down to deter him from doing this, causing her to be stabbed in the back. When Petitioner cut Castellon on her throat, she pushed him away with her feet and legs, and he left through the kitchen.
Castellon was taken to a medical center trauma center in critical condition. She had sustained twelve stab wounds and lost much blood, leading to concern that she would not survive. She had one stab wound in the neck, three in the back, two in the buttocks, one in the left upper abdomen, and five in her left arm. She needed to be resuscitated with a tube in her windpipe, and her left kidney and part of her colon had to be removed. A colostomy was required because of extensive laceration of her colon, and she suffered a collapsed left lung. There was also extensive damage to the muscles and tendons of her left arm that limited the use of her left hand. She initially remained in the hospital for fifteen days and returned for another eight days for further surgery to repair her colon. She was left scarred and in great pain.
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 his 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 ...