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 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 1994 conviction of three counts of attempted murder and an accessory to murder. Petitioner is serving a life sentence with the possibility of parole.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, Petitioner contends the Board of Parole Hearings' (Board) August 21, 2008 decision finding him unsuitable for release was in violation of his due process rights.
Petitioner filed a petition for writ of habeas corpus in the Orange County Superior Court, challenging the Board's 2008 decision. The superior court denied the petition finding some evidence to support the Board's decision.
Petitioner subsequently filed petitions for writ of habeas corpus in the state appellate court and state supreme court. Both petitions were summarily denied.
Petitioner filed the instant petition for writ of habeas corpus on January 20, 2010.
On May 14,2010, Respondent filed a motion to dismiss the petition as not cognizable. Petitioner opposed the motion on June 9, 2010. On September 3, 2010, Respondent's motion to dismiss was denied.
Respondent filed an answer to the petition on October 20, 2010. Petitioner filed a traverse on November 30, 2010.
On May 21, 1994, victims, Edwin Guevara, Andres Andrade, and Alfredo Andrade, gang members of the Varrio Little Town were walking down Placentia Street in Costa Mesa when they stopped to talk to two girls in front of a residence. The victims noticed a car pull into the driveway next to the residence. The victims recognized the passenger as "Mike," Miguel RuelasTejeda (Tejeda), the co-defendant, as a gang member from "Shalimar Street," but did not recognize the driver, later identified as Petitioner, a gang member of "Santa Nita." The victims saw Tejeda exit the vehicle and pull out a large dark colored handgun. Tejeda pointed the gun at the victim and began shooting in an unprovoked-assault. The victims ran for cover and noticed Tejeda adjust his gunfire in their directions as they moved.
The investigation revealed that one of the girls, identified as Araceli Jiminez, had reported that both Tejeda and Petitioner had driven past her residence on two occasions and had pointed a weapon at her. During the interviews, Tejeda admitted to pointing a gun at Jiminez earlier in the day. Tejeda stated he received a weapon from Petitioner earlier in the week. The weapon was located at Olmedo's residence and was identified as a Jennings .22 caliber semi-automatic handgun. Several photographs of Petitioner holding the gun and using gang hand signs were also discovered at the residence. During the interview with Petitioner, he admitted to loaning the fully loaded gun to Tejeda because he was having trouble with some "Little Town" gang members. Petitioner also stated that he was present when Tejeda shot at the victim. Petitioner believed Tejeda was only going to challenge the victims to a fight, but then observed Tejeda pull out the gun and start shooting at the victims.
DISCUSSION I. Standard of Review
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 ...