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 following his conviction of kidnapping during the commission of a car-jacking and robbery. Petitioner was sentenced to life with the possibility of parole plus four years.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges of the Board of Parole Hearings (Board) September 30, 2008 decision finding him unsuitable for parole.
Petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court, challenging the Board's 2008 decision finding him unsuitable for parole. The superior court denied the petition finding that the "Board has a reasonable concern about Petitioner's present dangerousness due to the facts of the commitment offense and based on the fact that Petitioner's offense was part of [a] crime spree that was relatively recent in relation to his initial parole eligibility hearing."
Petitioner then filed a petition in the California Court of Appeal. The appellate court also denied the petition in a reasoned decision finding some evidence to support the Board's decision.
Petitioner filed a petition for review in the California Supreme Court, which was summarily denied.
Petitioner filed the instant petition for writ of habeas corpus on November 8, 2010, and Petitioner filed a traverse on November 29, 2010.
On April 14, 1999, victim, Johnny Tolbert, walked out to his vehicle to retrieve his sunglass case. As he turned back to return to his apartment, he was approached by Petitioner who was carrying a knife. Petitioner instructed the victim to get back into his vehicle. One of Petitioner's crime partner was armed with a sawed-off shotgun and the other was armed with a baseball bat, and both entered the vehicle. The victim was instructed to drive to the Cresthaven area. Jiminez-one of crime partners, told the victim that he and the others were part of the Warlock gang and that they would kill him and his family if he reported the incident to the police.
They ordered the victim out of the car and told him that they had no intent of keeping the vehicle. They demanded the victim give them his driver's license so they would know where he lived. The victim complied and was allowed to exit the vehicle. He walked to the San Marcos Fire Station and called the Sheriff's Department. While the police were taking Petitioner's report, they received a call of a robbery with the description of the vehicle matching the victim's stolen vehicle. The police located the vehicle and initiated a traffic stop. Police found numerous stolen items in the vehicle as well as a knife with an approximately ten inch long blade and an unloaded 12 gauge shotgun, as well as a baseball bat. Petitioner and his crime partners were taken into custody. Petitioner and his partners admitted the carjacking and robbery, and also confessed to a total of seventeen robberies that had been committed in the San Marcos, Vista, Oceanside, and Escondido area.
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. arshall, 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 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 controlled by the following regulations:
(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for a denied parole if in the judgment of the panel the prisoner will ...