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 [Doc. 1]
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 following his conviction of first degree murder. Petitioner is serving a sentence of twenty-five years to life.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he contends that the Board of Parole Hearings' (Board) 2008 decision finding him unsuitable for release was not supported by some evidence that he presents a danger to society.
In 2009, Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court challenging the Board's July 21, 2008 decision finding him unsuitable for release. The superior court denied the petition.
Petitioner then filed a petition in the California Court of Appeal, Fifth Appellate District. The appellate court denied the petition.
Petitioner then filed a habeas corpus petition in the California Supreme Court. The petition was denied without comment or citation.
Petitioner filed the instant petition for writ of habeas corpus on February 23, 1010. Respondent filed an answer to the petition on October 12, 2010, and Petitioner filed a traverse on October 25, 2010.
On December 3, 1987, William Prickett and David Kangas, were drinking beer at Prickett's home. Kangas told Prickett that victim, Timothy Kachuck, owed Kangas $30 and Kangas intended to go to Kachuck's residence to collect the money or take a coffee table from his residence. While at Prickett's residence, Kangas telephoned Petitioner. Petitioner had been living with Kangas and his mother Silvia Kangas.
Prickett and Kangas picked up Petitioner from Kangas's residence. Kangas and Fucci talked amongst themselves about the money Kachuck owed and how they would collect it or take property from his residence. All three men drove to Kachuck's residence. When they arrived at the victim's residence, they told the victim they would obtain some methamphetamine for him. The three left the residence on the pretense of obtaining the crank. The three returned to Prickett's residence and put some "cutter" into a "bindle" to be given to Kachuck in lieu of crank. While at Prickett's residence, they also obtained a pair of handcuffs and gray duct tape. The three then returned to the victim's residence.
Kachuck lived with his parents who were out of town at the time. The three men returned to the victim's residence with beer and the "bunk crank." The victim allowed them to enter the residence.
Kachuck was given the "bunk crank" and started to walk toward the bathroom. An argument ensued between Petitioner and the victim. Petitioner slapped the victim several times and a wrestling match ensued, whereby the victim fell to the ground. Kangas then instructed Prickett to accompany him to a bedroom. Kangas began to go through the personal belongings looking for property he planned to take. Kangas then entered a different room into an attic area and began removing chain saws. At that point Prickett left the residence, while Kangas and Petitioner remained in the room. Approximately two hours later, Prickett received a phone call from Kangas who asked Prickett to return to the residence to give him a ride. Prickett returned to the victim's residence and discovered that a majority of the property had been removed. Prickett assisted Kangas in placing the property into his vehicle and drove Kangas to a location where some of the property was left. During the ride, Kangas told Prickett that Kachuck was dead and that Petitioner killed him. Kangas also told him that Petitioner hit the victim in the head with a frying pan. Prickett was directed to transport Kangas to a place where he was left, and then Prickett returned home.
Investigators discovered that the victim had his hands tied behind his back with gray duct tape. The victim's lower legs, knees, and waist had also been wrapped with duct tape. The autopsy report concluded the victim died of suffocation. The victim's mouth and nose had been taped with at least twelve wraps of duct tape, which was done in such a way to totally seal his mouth and nostrils. The doctor also observed evidence of trauma to the eyes, face, head, and back.
Several stolen items were recovered from the home of David Williams who told officers that Petitioner had stored it at his residence while he was residing there.
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 ...