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 San Diego County Superior Court in 1996 of forcible oral copulation with the use of a firearm. He is serving a sentence of seventeen years to life with the possibility of parole.
Petitioner does not challenge his underlying conviction; rather, he challenges the November 25, 2008, decision of the California Board of Parole Hearings ("Board") denying Petitioner parole at his initial parole consideration hearing. Petitioner claims the Board breached his plea agreement by failing to use a preponderance of evidence standard. He also contends the Board breached his plea agreement by keeping him incarcerated despite Petitioner reaching the maximum term of his imprisonment. He further claims the Board and California courts denied Petitioner's due process rights because the determination of unsuitability for parole lacked some evidence of current dangerousness.
Petitioner filed a habeas petition challenging the Board's 2008 decision in the San Diego County Superior Court on March 24, 2009. The petition was denied in a reasoned decision on May 14, 2009. Petitioner next filed a habeas petition in the California Court of Appeal, Fourth Appellate District, on August 20, 2009. The appellate court denied the petition on September 30, 2009, in a reasoned decision. Petitioner then filed a habeas petition in the California Supreme Court on December 21, 2009. The petition was summarily denied on June 17, 2010.
Petitioner filed the instant federal petition for writ of habeas corpus on August 12, 2010. Respondent filed an answer to the petition on November 1, 2010. Petitioner filed a traverse on November 30, 2010. Petitioner also filed an addendum to his traverse on December 6, 2010; however, the Court will not consider the declarations contained in the addendum.*fn2
On May 9, 1995, at approximately 8:30 p.m., two young males, Tam Houng Chau ("Tam") and Loc Vu Pham ("Loc"), approached a residence at 811 Amethyst in Oceanside. The door was answered by Marlo Villena ("Marlo"), who looked through a security peephole but did not open it. Tam asked to talk with 22-year old Sheri Villena ("Sheri"), indicating that he was an acquaintance of a friend of hers who lived in Santa Ana. Sheri is the daughter of Marlo. Tam was very insistent and Sheri, who had been upstairs talking with her boyfriend on the telephone, came to the front door. In the meantime, Marlo retrieved a loaded .25-caliber semi-automatic from the kitchen drawer. After Tam indicated that he had to hurry as his father was waiting for him in the car, Marlo unlocked the front door. Tam, Loc, and four additional males rushed into the house, causing the door to strike Sheri in the head. The other males were later determined to be Petitioner, Lam Nguyen ("Lam"), Tai Truong ("Tai") and Phong Dang ("Phong"). Some of the suspects carried handguns. Marlo and Sheri were forced under a coffee table at gunpoint. Pillows were wedged under the table, covering the victims' heads and eyes. The suspects demanded to know where there was money and jewelry in the house as they punched and kicked at the two women.
For the next two and three-quarter hours, Tam and his five companions, whose ages ranged from 14 to 17 years, ransacked the Villena home. They removed sodas from the refrigerator. The soda cans, contents of drawers and closets were scattered about the residence, both upstairs and downstairs. Tam discovered the gun in Marlo's pocket and took it away. Marlo had not fired the gun, fearing the armed suspects would have killed her daughter. Loc and Phong found a safe and brought it downstairs. There, they forced Marlo to open the safe. They then tied Marlo's hands with an electrical cord and put her in the family room. One of the suspects asked her if she was expecting anyone to return home. She indicated that her husband was due back shortly as he was playing tennis at the time. The suspects called her a liar and stated that they knew her husband only came home on weekends. The suspects threatened to 'blow your heads off.' Sheri was picked up by two of the suspects and taken into the pool room. There, she was placed on the floor by a roll-top desk. The suspects took off her pants and fondled her breasts. At one point, one suspect attempted to force her to orally copulate him. One of the suspects began fondling Sheri and another ejaculated on her stomach. Although the suspects continued to demand that Sheri orally copulate them, she indicated she was virgin and did not know what they wanted. (She did this hoping they would not assault her further.) At this point in time, Lam inserted his erect penis into her vagina. She later indicated he did not ejaculate.
A short time later, Marlo's husband Andrew Villena ("Andrew") came home. He later told police that he noticed a white pick-up truck in front of the house, but did not suspect anything thinking it was one of Sheri's friends. Andrew opened the garage door to his home with the automatic opener. He entered the house through the garage entrance. After he had taken three or four steps into the house, someone grabbed him and began beating him. He was kicked and punched in the face. His hands and feet were tied behind his back with an electrical cord from the vacuum cleaner. He later reported that he was ordered, 'Don't move or we'll blow your head off.' He was struck in the head several times with a blunt object and jabbed in the side with what he believed was a gun. During the entire time, he was forced to keep his face hidden. During the attack on her father, Sheri was picked up by a suspect and laid near her father. Sheri was then taken upstairs to the master bedroom. While upstairs, all of the suspects ordered Sheri to orally copulate them. All but one ejaculated on her blouse. Sheri later told police that the suspects were laughing during this assault, calling each other names. One of the suspects propped up the victim's waist with a pillow and another pulled a lamp very close to her legs. As she thought they were going to burn her, she pulled away from them. One of the suspects yelled that the lamp was too hot and they stopped assaulting her. All of the suspects with the exception of Loc returned downstairs. After a short time, Loc helped Sheri downstairs and placed her next to her father. He then tied her arms and legs with an extension cord.
The suspects continued to ransack the house. They removed several items of property placing them in Andrew's Dodge van. They also took all of the keys to the cars belonging to the Villenas. Suddenly, the suspects ran out of the house, through the back sliding glass door. As they ran out, one of the suspects told the family members not to move or they would be killed. The suspects drove away in Tam's Honda and in the Dodge van belonging to Andrew. Marlo managed to free herself, running to a neighbor's house to call police. Sheri freed herself and her father. Together they met the police officer who had entered the home through the garage door. San Diego police officers had been called by Sheri's boyfriend, who had been unable to reach Sheri after their initial phone call at 8:30 p.m., which had been interrupted when the defendants first came to the Villena front door. Sheri's boyfriend had become very concerned when he could not contact Sheri for the next few hours. He finally had called the Oceanside Police Department and asked them to check on the welfare of Sheri and her mother. Tam was arrested on June 3, 1995, along with several other suspects. He declined to make a statement. Loc did agree to talk with the police. He indicated that a cousin of the Villenas, 'Mindy,' had told Lam about the Villenas' house, indicating the occupants were rich and had a safe. 'Mindy' had given Lam the telephone number and a map of the house. Loc indicated that it was he, not Tam, who had originally spoken with Marlo, thereby gaining access to the residence.
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 (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 (2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)); Cooke v. Solis, 606 F.3d 1206, 1213 (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 ...