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 conviction of aggravated mayhem with use of a deadly weapon. Petitioner is serving a sentence of 7 years to life, plus a one year enhancement.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings (Board) 2006 decision finding him unsuitable for release.
Petitioner filed a state petition for writ of habeas corpus in the Los Angeles County Superior Court on May 22, 2007. The superior court denied the petition in a reasoned decision findings some evidence to support the Board's decision.
Petitioner then filed a habeas petition in the California appellate court. The petition was denied without comment or citation. Petitioner also filed a habeas petition in the California Supreme Court which was also summarily denied.
Petitioner filed the instant federal petition for writ of habeas corpus on February 24, 2009. Respondent filed an answer to the petition on June 22, 2010. Petitioner did not file a traverse.
Petitioner and Maria Casteon divorced in October of 1989 following an 11-year marriage during which they had two children together. During the divorce process, Petitioner had told Casteon that in his mind they were still husband and wife and he had the same rights with her. He had threatened that if she was not going to be his, she was not going to be anyone else's and he would kill her, the children, and himself. Petitioner had permission to visit the children on the weekends, but otherwise, lacked permission to visit the residence. On July 2, 1990, Maria Casteon spoke to Petitioner. She bought a new stove and wanted to dispose of the old one, and Petitioner wanted her to get rid of it in the next weekend. That evening while Casteon was away, Petitioner went to her home without telling her. Casteon had gone dancing with a male friend after 9:00 p.m. leaving her three youngest children in the care of her 13-year-old daughter, Maria. She arrived at home at approximately 1:45 a.m. and found Petitioner sitting in the kitchen with the lights off. Petitioner stood up and asked, now what? He started pacing around, asking questions, and insisted that she tell him who she had been with. She refused and said they agreed that she would have her own life. Casteon's daughter heard Petitioner threaten Casteon stating, "[t]ell me who it is or else we're both going to die." Petitioner said, "[t]he children were alone, where were you?" He then grabbed a hammer but put it away after she asked whether he was going to kill her. When Casteon would not tell him the name of her date, Petitioner sat down and started to cry. Casteon went into the bedroom and thought she heard Petitioner leave after using the restroom. However, Petitioner opened the bedroom door a moment later and entered. He then picked up the telephone and told her he was going to take the children away from her. After he hung up the phone, he ran to the kitchen obtained a knife and returned. Petitioner approached Casteon and she screamed, "No don't do it." Petitioner said, "This is where you are going to end." Petitioner then stabbed her quickly and repeatedly with the knife. He grabbed her feet and lifted them trying to stab her in her private area. She turned face down to deter him from doing so which caused her to be stabbed in the back. When Petitioner cut Casteon on her throat, she pushed him away with her feet and legs, and he left through the kitchen.
Casteon was taken to a medical trauma center in critical condition. She had sustained 12 stab wounds and lost a lot of blood. She had one stab wound in the neck, three in the back, two in the buttocks, one in the left upper abdomen, and five in the left arm. She needed to be resuscitated with a tube in her windpipe and her left kidney and part of her colon had to be removed. A colostomy was required because of the extensive laceration of her colon and she suffered a collapsed left lung. There was also extensive damage to the muscles and tendons of her left arm with the limited use of her left hand. She initially remained in the hospital for 15 days and returned for another eight days for further surgery to repair her colon. She was left scarred and in great pain.
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 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 pose an unreasonable risk of danger to society if released from prison.
(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's ...