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 Butte County Superior Court in 1990 of second degree murder. He is serving a sentence of fifteen 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 March 9, 2009, decision finding Petitioner unsuitable for parole. Petitioner contends he was denied his due process rights because the decision of the Board of Parole Hearings (Board) finding Petitioner presented an unreasonable risk of danger to society was not supported by any evidence. He further argues the Board's denial was based on immutable factors.
Petitioner filed a habeas court petition challenging the Board's decision in the Butte County Superior Court on July 17, 2009. The petition was denied on August 21, 2009. Petitioner next filed a habeas petition in the California Court of Appeal, Third Appellate District, on September 17, 2009. The appellate court denied the petition on September 25, 2009. Petitioner then filed a habeas petition in the California Supreme Court on November 2, 2009. The petition was summarily denied on April 22, 2010.
Petitioner filed the instant federal petition for writ of habeas corpus on June 4, 2010. Respondent filed an answer to the petition on August 27, 2010. Petitioner filed a traverse on September 16, 2010.
Petitioner initiated a verbal altercation with the victim. At the time, Petitioner had a handgun in his pocket. His friend was standing nearby holding a rifle. There was no evidence that the victim was armed. During the argument, Petitioner withdrew his gun from his pocket, cocked it, and then returned it to his pocket. As the victim was bending over to enter his car Petitioner shot him in the face from a very close distance. Immediately after the shooting, Petitioner prevented the victim's friend from aiding him. Petitioner fled, but before doing so, he removed the keys from the car in which the victim had arrived.
Petitioner told his probation officer that the victim intimidated him and humiliated him for about two months prior to the shooting. He also stated in the past the victim had threatened Petitioner's life as well as his family. Petitioner's girlfriend said she was not aware of any prior disputes between Petitioner and the victim. She also testified that shortly before the shooting she heard the victim say he would kill Petitioner when he returned and that she had told the police officer that the victim had told Petitioner to kill him then because the victim would kill Petitioner when he returned. Petitioner's girlfriend's sister also heard the victim make the latter statement. Petitioner entered his plea under an agreement which specified that Petitioner would plea to second degree murder and that the firearm use enhancement would be dismissed. At sentencing, the court denied probation.
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 ...