The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner Victor Solorio Castelan is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, (1) Petitioner's requests are denied; and (2) it is recommended that habeas relief be denied.
On February 3, 1994, Petitioner pleaded nolo contendere to second degree murder, with a firearm use enhancement, assault with a firearm, and discharging a firearm in the San Joaquin County Superior Court. Resp't's Answer Ex. 1, at 174, ECF No. 11 (citing CAL. PENAL CODE §§ 187, 245(a)(2), 246, 12022.5(a)). Petitioner is currently serving a sentence of twenty years to life in prison. Pet'r's Pet. 1, ECF No. 1. In the instant action, Petitioner challenges the decision by the California Board of Parole Hearings (the "Board") denying Petitioner parole. Petitioner appeared before the Board on November 28, 2007.
On March 7, 2008, Petitioner filed a petition for writ of habeas corpus with the San Joaquin County Superior Court challenging the Board's decision. See Resp't's Answer Ex. 1. On May 15, 2008, the Superior Court issued a reasoned opinion denying the petition. See Resp't's Answer Ex. 2. Petitioner sought relief in the California Court of Appeal, Third Appellate District, and the California Supreme Court; those petitions were likewise denied, but without written opinions. See Resp't's Answer Exs. 3-8.
On February 24, 2009, Petitioner filed a federal petition for writ of habeas corpus. Respondent filed an answer to the petition on June 19, 2009, to which Petitioner filed a traverse on July 20, 2009.
On . . . Sunday, June 28th, 1992 at 1:43 a.m., Antonio Mendez Rocha, . . . age 21, sustained multiple gunshot wounds to the head and face. He was pronounced dead on arrival at San Joaquin General Hospital.
Jose Luis Rocha Gomez, age 20, and an uncle to the victim, told the circumstances of Antonio's death to investigating officers of the Stockton Police Department. Antonio was driving a gray four-door 1978 Chrysler Cordoba northbound on El Dorado Street in the middle lane. Jose was his passenger.
Another vehicle pulled alongside and someone began firing shots. Jose bent over, Antonio applied the brakes, then collapsed. They hit a curb and stopped. When Jose looked outside the car, the assailants had fled. Despite the broken windows and flat left rear tire, Jose brought the victim to the hospital.
The investigating officers were assisted by an anonymous phone call from an eye witness who stated that the shooting involved a red Chevrolet Impala, that was occupied by two subjects.
On June 28th, 1992 at 8:30 p.m., an officer of the Stockton Police Department observed a red two-door Chevrolet Impala roll through an intersection without completing a stop. The vehicle stopped at B and 11th Streets, but it did not have a brake light. Knowing this to be a suspect vehicle, the officer summoned back-up units.
Rudy, initial T, age 15, was driving the vehicle without a driver's license. His front seat passenger was Angel Borg, . . . age 17. The officer noted that both were actively supervised by the Gang Unit of the Probation Department. The rear passenger, Raymond Galindo, age 18, was questioned and released.
Rudy T. gave the officer permission to search the car. The right armrest of the rear seat was slightly pulled up. Concealed in this area was a clear plastic box of .22 caliber bullets. The left armrest was slightly pulled away from the panel. In this area w[as] a revolver wrapped in a white T-shirt and several red shotgun shells. The vehicle that lacked brakes was towed and impounded.
Rudy T., Galindo, and Borg were transferred to the Stockton Police Department for further investigation. After being advised of their rights per Miranda, Torres and Borg advised officers that Victor Castelan was also in the vehicle at the time of the shooting. Borg also claimed that Castelan fired the weapon that killed the victim. Officers of the Stockton Police Department met with the supervising probation officer at the Gang Unit, and with the assistance of the Gang Unit went to 2922 Malvern Court, . . . where Castelan lived. He voluntarily accompanied the officer to the police facility where he provided information regarding the weapon in question.
The officers then proceeded to 1731 South Sutter Street. At this location, they recovered the shotgun and found two subjects with warrants outstanding for their arrest. During questioning, Borg told the investigating officer that he was the driver of the suspect vehicle at the time of the shooting. He added that he helped hide the shotgun.
Rudy T. changed his story three times during testimony and finally identified Castelan as the person who fired the shotgun and killed the victim.
Pet'r's Pet. Ex. A, at 51-54; Parole Hr'g Tr. 18-21, Nov. 28, 2007 (deriving facts from "Probation Department's report").
Petitioner was sixteen years old and on probation when he committed the commitment offenses. Pet'r's Pet. Ex. A, at 54-57, 96; Parole Hr'g Tr. 21-24, 63. Petitioner's "first contact with the juvenile justice system occurred when [he] w[as] 12 years old, and [he] had 27 contacts with the juvenile justice system." Pet'r's Pet. Ex. A, at 59; Parole Hr'g Tr. 26. Petitioner stated "he began using marijuana at the age or 12 off and on," and "he drank alcohol on occasion." Pet'r's Pet. Ex. A, at 83; Parole Hr'g Tr. 50. Petitioner's psychological evaluation revealed that Petitioner "was in the Sixth Street Gang prior to coming into prison." Resp't's Answer Ex. 1, at 174.
Petitioner's father was a truck driver, and his mother was a baker. Pet'r's Pet. Ex. A, at 57; Parole Hr'g Tr. 24. At the hearing, Petitioner was not married, and had one child who was fifteen years old. Pet'r's Pet. Ex. A, at 58; Parole Hr'g Tr. 25. Petitioner's family and friends wrote letters in support of his release, including offers of residence and jobs. Pet'r's Pet. Ex. A, at 95-96; Parole Hr'g Tr. 62-63.
Petitioner performed well in prison. See, e.g., Pet'r's Pet. Ex. A, at 60-67, 129-30, 141; Parole Hr'g Tr. 27-34, 97-98, 109. Petitioner completed numerous self-help programs. Pet'r's Pet. Ex. A, at 60-64; Parole Hr'g Tr. 27-31; see also Resp't's Answer Ex. 1, at 173-74. Petitioner's psychological evaluation stated Petitioner "dropped out of school in the 7th grade because he was in and out of Juvenile Hall," but he "received a GED while in prison in 1995."*fn1
Resp't's Answer Ex. 1, at 173. Petitioner "completed the vocational welding program in '05;" experienced some training in refrigeration, air conditioning, computers, small engines, and office services; and "completed a program through the Blackstone Career Institute" for a "degree [as a] legal assistant [or] paralegal" in October 2005. Pet'r's Pet. Ex. A, at 62, 69-70, 111; Parole Hr'g Tr. 29, 36-37, 79. Petitioner's most recent psychological evaluation, dated November 14, 2007, concluded that Petitioner "poses a very low risk of violence in the community." Pet'r's Pet. Ex. A, at 88; Parole Hr'g Tr. 55; see Resp't's Answer Ex. 1, at 171-80.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) 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
(2) 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 also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more than one state court has adjudicated a petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.")). A federal habeas court looks through ambiguous or unexplained state court decisions to the last reasoned decision to determine whether that decision was contrary to, or an unreasonable application of, clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
The petition for writ of habeas corpus sets forth two requests. Specifically, Petitioner requests: (1) an order to show cause; and (2) appointment of counsel. Pet'r's Pet. 19.
A. First Request: Order To Show Cause
First, Petitioner requests "an Order to Show Cause . . . directing respondents to Show Cause, if any, why the relief sought should not be granted[.]" Id. As stated earlier, Respondent filed an answer to the petition on June 19, 2009, to which Petitioner filed a traverse on July 20, 2009. Petitioner's request for an order to show cause is denied as moot.
B. Second Request: Appoint Counsel
Second, Petitioner requests appointment of counsel in further litigation of this action. Id. The Sixth Amendment right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). A district court, however, may appoint counsel to represent a habeas petitioner whenever "the court determines that the interests of justice so require," and such person is financially unable to obtain representation. 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the district court's discretion. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Courts have made appointment of counsel the exception rather than the rule by limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal, or mixed legal and factual questions; (3) cases involving uneducated or mentally or physically impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the claims; (5) cases in which the petitioner is in no position to investigate crucial facts; and (6) factually complex cases. See generally 1 J. LIEBMAN & R. HERTZ, FEDERALHABEASCORPUSPRACTICE AND PROCEDURE § 12.3b, at 383-86 (2d ed. 1994). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965).
Appointment of counsel is not warranted in this case. Petitioner's claim is a typical claim arising in a habeas petition and is not especially complex. This is not an exceptional case warranting representation on federal habeas ...