The opinion of the court was delivered by: Gary S.Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
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 in Orange County Superior Court in 1993 of second degree murder with enhancement for use of a firearm. He is serving a sentence of nineteen years to life with the possibility of parole.
Petitioner does not challenge his underlying conviction; rather, he claims the California Board of Parole Hearings ("Board") violated his due process rights in its August 15, 2008, decision finding Petitioner unsuitable for parole. Petitioner contends the Board denied his due process rights when it arbitrarily denied parole based on the immutable facts of the commitment offense. In addition, he claims the Board failed to articulate a nexus between the immutable offense facts and the determination of current dangerousness.
Petitioner filed a habeas petition challenging the Board's 2008 decision in the Orange County Superior Court on March 16, 2009. The petition was denied in a reasoned decision on April 7, 2009. Petitioner next filed a habeas petition in the California Court of Appeal, Fourth Appellate District, on July 21, 2009. The appellate court denied the petition on July 30, 2009. Petitioner then filed a habeas petition in the California Supreme Court on October 2, 2009. The petition was summarily denied on March 24, 2010.
Petitioner filed the instant federal petition for writ of habeas corpus on June 11, 2010. Respondent filed an answer to the petition on October 28, 2010. Petitioner filed a traverse on November 22, 2010.
In October of 1992, Petitioner was visiting his ex-fianceee who had informed him that her clothing and other property had been taken when she was at a party. Petitioner agreed to go with her later that afternoon to help her retrieve her belongings. She drove them both to the house and attempted to get her belongings back from the victim and his friend. Petitioner stated that the victim and his friend were staring at him in a hostile manner and that the victim pulled out a knife and held it at his side.
Petitioner and his ex-fianceee left and went to a friend's house to see if he would help retrieve the clothes. Petitioner's friend was too busy to join them, but gave Petitioner a gun for his protection should he go back to the house. His ex-fianceee drove him back to the house and Petitioner went up to the door to retrieve the clothes. The victim and his friend came to the door. The victim pulled the knife again and threatened him. The victim started to come at Petitioner. Petitioner got scared, pulled out his gun, and fired twice. The victim's friend closed the door, and Petitioner ran back to the car. Petitioner knew the shots had struck the victim but he stated he did not know the severity of the injuries. He states he did not call the police out of fear. He then returned the gun to his friend who said he would get rid of the gun.
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 his 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 (9thCir.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, No. 08-55728, 2010 WL 2108964, * 2 (9th Cir. May 24, 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, No. 06-15444, 2010 WL 2330283, *6 (9th Cir. June 4, 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 ...