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 Department of Corrections and Rehabilitation following his conviction of second degree murder. He is serving a sentence of fifteen years to life plus a one year.
In the instant petition, Petitioner does not challenges the validity of the conviction; rather, he challenges the California Board of Parole Hearings' (Board) 2008 decision finding him unsuitable for release.
Petitioner filed a state petition for writ of habeas corpus in the Los Angeles County Superior challenging the Board's 2008 decision. The superior court denied the petition finding some evidence supported the Board's decision.
Petitioner raised the same claims to the California Court of Appeal and California Supreme Court. Both petitions were summarily denied.
Petitioner filed the instant petition for writ of habeas corpus on March 9, 2010, in the United States District Court for the Central District of California. The petition was subsequently transferred to this Court on March 23, 2010.
Respondent filed an answer to the petition on June 14, 2010, and Petitioner filed a traverse on June 30, 2010.
On October 3, 1991, victim, Jose Velasquez was killed by a blunt force trauma to the head. At 9:30 p.m., Lawrence Mich, who lived on Belmont Avenue, heard two voices speaking Spanish outside near the front of his house. After about two minutes, the voices stopped. Then he heard what sounded like a wet soccer ball being kicked, about four heavy wet splat sounds. His wife opened the front door and saw two males dragging a third persons by the feet leaving a trail of blood. She then asked Mich to look. He saw the two men about 20 feet away dragging another man, who was bleeding from the head, by his ankles. He immediately called 911, then went out the front door and saw a trail of blood leading from his front yard to the footbridge over the 101 Freeway. About 50 feet down the footbridge, he saw a prone male on the ground. Two minutes later, Officer Webb arrived and saw the trail of blood leading from Mich's house to the footbridge over the 101 Freeway. He ran to the footbridge and saw Petitioner dragging a body over the bridge. Another man identified as Petitioner's cousin, Gregorio, was standing on the bridge holding onto a wall. Webb identified himself as a police officer and ordered Petitioner, who was still dragging the body, to stop, but instead Petitioner ran across the bridge away from the officer. Officer Webb chased Petitioner to apprehend him.
Detective Soler, found a large, bloody, concrete block at the scene, which weighted approximately 40 to 80 pounds. The blood on the rock was consistent with that of victim Velasquez and that of co-defendant Gregorio. Velasquez's injuries could have been caused by the concrete block. Petitioner and co-defendant Gregorio had blood on their clothes, which did not match either of their blood type. The victim's pockets had been turned inside out but none of his property could be found at the scene or on co-defendant Gregorio. A bite mark matching Petitioner's teeth was found on Velasquez's body. Petitioner had a blood alcohol level of .23
Petitioner admitted he was drinking the day of the offense, and remembers walking with his cousin to Echo Park and saw the victim walk by. He admitted that words were exchanged with the victim by he and his cousin. He claimed to not remember bitting the victim. However, Petitioner remembered his cousin telling him to "pick up the body and carry it", which he did.
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 ...