The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, AMENDED FINDINGS AND RECOMMENDATIONS
Petitioner, Loreto Paradela is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of fifteen years to life imprisonment following his 1994 conviction for second degree murder. Petitioner challenges the October 10, 2006 decision of Governor Schwarzenegger reversing a grant of parole by the Board of Parole Hearings ("Board"). Petitioner presents a single claim for review; specifically that the Governor's decision and the California state court's subsequent review of that decision violated his "federal due process rights and did not comport with clearly established federal law, in that the decisions was contrary to, and an unreasonable application of, federal law and resulted in decisions that were unreasonable based on the facts presented."
(Pet'r's Pet. at p. 4.) For the following reasons, the petition should be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn1
Early in the morning of September 5, 1993, Loreto Paradela drove his motorcycle to Robert Bracamonte's house, where Mr. Paradela and others planned to party. Some time later, as the group was leaving, Mr. Bracamonte asked to ride Mr. Paradela's motorcycle, and Mr. Paradela agreed. Thomas Lagua, Mr. Paradela's friend, drove Mr. Paradela to Mr. Lagua's house while Mr. Bracamonte followed on motorcycle. At one point during the drive, Mr. Bracamonte unexpectedly "disappeared" for approximately 30 minutes to an hour, upsetting Mr. Paradela. Mr. Bracamonte and Mr. Paradela later met up at Mr. Lagua's house. Mr. Lagua then drove Mr. Paradela and Mr. Bracamonte back to Mr. Bracamonte's house.
Along the way, Mr. Lagua stopped the car in a field to allow Mr. Paradela to urinate. When Mr. Paradela returned to the car, he pulled Mr. Bracamonte out of the car to fight. Mr. Paradela punched Mr. Bracamonte and then took out a knife and stabbed him approximately three times. Mr. Bracamonte ran into the field to get away from Mr. Paradela, but Mr. Paradela chased him down and continued stabbing him. Mr. Paradela then returned to the car and they drove away leaving Mr. Bracamonte in the field to die. (Resp't's Answer, Ex. 1 at p. 84.)
Petitioner was convicted of second degree murder in 1994 and was sentenced to fifteen years to life imprisonment. On May 17, 2006, the Board conducted a subsequent hearing to determine Petitioner's suitability for parole. The Board determined that Petitioner would not pose an unreasonable risk of danger to society or a threat to public safety if released and thus concluded that he was suitable for parole.
On October 10, 2006, Governor Schwarzenegger reversed the Board's grant of parole. Petitioner challenged the Governor's reversal in the San Joaquin County Superior Court. That court denied his petition on March 12, 2007. The California Court of Appeal, Third District summarily denied Petitioner's state habeas petition as did the California Supreme Court.
On September 10, 2010, the undersigned issued findings and recommendations that the federal habeas petition should be denied. In light of the recent United States Supreme Court case in Swarthout v. Cooke, No. 10-333, -- S.Ct. --, 2011 WL 197627 (Jan. 24, 2011) (per curiam), the September 10, 2010 findings and recommendations is hereby vacated and replaced with this amended findings and recommendations.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) 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 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrande, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. at 71-72. Under the unreasonable application clause, 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." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "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. 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, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). ...